In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry

Last week's 6-3 decision in the 303 Creative v. Elenis case, with all the conservative justices vindicating a website designer's ability to refuse to build a website celebrating gay marriage, may seem at first glance to be a blow to gay rights. And maybe that's what some or all of the six justices in the majority intended for it to be. But that's not the upshot to the decision. With its language and rationale the majority has instead reinforced in our constitutional jurisprudence a critical recognition of the way the First Amendment right to free expression reaches online expression, including as expressed through coding. In so recognizing it the Court has ended up providing critical protection for everyone, including those whom bigoted government officials seek to victimize and silence. Even if that's not what the Court realized it was doing, or intended to do.

To understand why this decision is actually good for the most vulnerable among us, think about what would follow if the case had been decided against the web designer. The dissent, quite reasonably, frets that it ensures that bigots can still be bigots. And it likely will. But a decision to the contrary, or even in her favor with a different rationale, would have handed them greater power to abuse than this decision preserves.

We know it would because we can see it happening right now before our eyes with a growing number of government officials who are using, as a vector of attack, the control of what views can be expressed on the Internet to favor bigots and their destructive messages. Consider, for instance, the actions taken by Florida to attempt to regulate the Internet by constraining platforms' ability to eliminate the hateful expression they don't wish to further (actions which so far have only been partially enjoined by the Eleventh Circuit). Or those taken by Texas, which the Fifth Circuit bizarrely blessed in their entirety (and are only now enjoined for procedural reasons). According to that court, Texas, which is busy trying to make life a nightmare for anyone state officials' bigotry sets its sights on, can of course force Internet sites to only advance expression that vindicates its odious policy and suppress any expressive efforts that challenges it.

Expressive freedom is key to being able to push back at injustice and bigotry, which is exactly why bigots in government are trying so hard to impinge upon the right to speak against them, including online. The last thing the people they are trying to hurt need is for the Supreme Court to undermine that freedom. Expressive freedom is what makes it possible to tell Governors DeSantis and Abbott and their ilk to take a hike when it comes to trying to mold the Internet and the world in their bigoted image. Without it the fight against these censorial efforts, and bigotry overall, becomes that much harder, legally and practically, if not impossible.

Deciding the case as it did, by peeling the protection of free expression off from the question of the constitutionality of anti-discrimination law generally, both fortified the defense of expressive freedom and preserved anti-discrimination law. The latter's destruction may still be a goal of this Court, and someday it may do away with it, but it will require a different constitutional theory and a different case. Following this one, businesses are still not free to discriminate. [p.20]. They still can't turn away customers based on any protected characteristic of that customer. This decision is solely about the message the business is being asked to convey.

Colorado next urges us to focus on the reason Ms. Smith refuses to offer the speech it seeks to compel. She refuses, the State insists, because she objects to the protected characteristics" of certain customers. Brief for Respondents 16; see also post, at 26-27, 31-32 (opinion of SOTOMAYOR, J.) (reciting the same argument). But once more, the parties' stipulations speak differently. The parties agree that Ms. Smith will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites" do not violate her beliefs. That is a condition, the parties acknowledge, Ms. Smith applies to all customers." [p. 17]

The dissent argues that it is easy to couch any discrimination in expressive terms. But that Subway calls its staff sandwich artists" does not make its subs expression. And the majority acknowledges that, Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions." [p. 21-22] But expression has often been found expansively.

But our precedents endorse nothing like the limits the dissent would project on them. Instead, as we have seen, the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers). [p. 23]

And even when there are gray areas, resolving those tensions in favor of finding expressiveness ultimately serves those who most need to speak out, whereas weakening the applicability of the First Amendment strips those whom bigots would target of important defenses and empowers those who would do further harm. In this case, had the Court ruled against the web designer because it was displeased with her opinions it would have represented a fundamental change in First Amendment jurisprudence. And with that change limited the expansive protection it had previously been found to provide expression and that people need for it to provide expression in order to be able to push back against those who would use their power to hurt. It also would have provided defensive cover for the DeSantises and Abbotts of the world and undermined the litigation seeking to enjoin their efforts.

For a Court that doesn't seem to care very much about precedent, ignoring it whenever convenient to serve its cynical ends, it is no small miracle when it doesn't find a way to curtail a constitutional right the public depends on. But even if in this case the Court may have been motivated to protect a right because this refusal served those cynical priorities, it nevertheless still protected that right, and for everyone, because instead of hobbling them it ultimately sharpened the doctrinal tools needed to fight back against those who would violate it.

It does so as follows:

Perhaps the most important feature to this decision is its recognition that code can be speech and coding is itself an inherently expressive act covered by the First Amendment. The language reaffirms the Reno v. ACLU decision from nearly thirty years ago, which found that online speech was just as protected by the First Amendment as offline speech, but adds to it the important acknowledgement that speaking comes in more forms than just prose.

[W]e align ourselves with much of the Tenth Circuit's analysis. The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as pure speech" under this Court's precedents. We agree. It is a conclusion that flows directly from the parties' stipulations. They have stipulated that Ms. Smith's websites promise to contain images, words, symbols, and other modes of expression." They have stipulated that every website will be her original, customized" creation. And they have stipulated that Ms. Smith will create these websites to communicate ideas-namely, to celebrate and promote the couple's wedding and unique love story" and to celebrat[e] and promot[e]" what Ms. Smith understands to be a true marriage.

A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed with a voice that resonates farther than it could from any soapbox." Reno v. American Civil Liberties Union, 521 U. S. 844, 870 (1997). All manner of speech-from pictures, films, paintings, drawings, and engravings," to oral utterance and the printed word"-qualify for the First Amendment's protections; no less can hold true when it comes to speech like Ms. Smith's conveyed over the Internet. [p. 9-10]

The judicial recognition that the other modes of expression," including, presumably, the coded parts of the website were not disqualified from First Amendment protection will matter in all sorts of cases as regulators of all sorts of political stripes try to constrain what the Internet can be, as suits their policy preferences. But even if we just contemplate those attempts (such as by Texas and Florida) to force the Internet to further bigotry, this case is important to those who would be victimized by those efforts because it means that (a) their own coding, including of their own websites, is subject to First Amendment protection, and (b) so is the coding of the platforms they use to facilitate their speech to connect, organize, and push back against hateful ideas. Per the logic of the decision, platforms can't be forced to code their sites in a way that refuses or subordinates anyone's message just because government officials, bigoted or otherwise, want them to.

In recognizing that code is speech, the Court affirmed that anyone can build their own website. But not everyone with something to say has the skills or other necessary resources needed to make their own website, or say anything in a particular medium where there is an audience they want to reach. Sometimes they need another's help to facilitate their expression. This decision helps ensure that this help can be available by recognizing that facilitating someone else's expression can involve an exercise of their own.

We further agree with the Tenth Circuit that the wedding websites Ms. Smith seeks to create involve her speech. Again, the parties' stipulations lead the way to that conclusion. As the parties have described it, Ms. Smith in tends to ve[t]" each prospective project to determine whether it is one she is willing to endorse. She will consult with clients to discuss their unique stories as source material." And she will produce a final story for each couple using her own words and her own original artwork." Of course, Ms. Smith's speech may combine with the couple's in the final product. But for purposes of the First Amendment that changes nothing. An individual does not forfeit constitu tional protection simply by combining multifarious voices" in a single communication. Hurley, 515 U. S., at 569. [p. 10]

Recognizing that the First Amendment applies to every link on the expressive food chain, from direct speakers to the helpers that facilitate their speech, means that not only are website designers protected from having to produce websites for hateful people, but so are any others who provide their expressive services to others, including copywriters, filmmakers, songwriters, portrait painters, or, as the dissent frets, photographers. But this rule is not new; the Court had long ago found that newspapers that can't be forced to run op-eds written by another favoring discriminatory policies because it would co-opt their expressive services to convey another's message they didn't want to convey. The 303 Creative decision simply extends that general principle and also means that even Internet platforms, which Texas and Florida have tried to conscript to make sure that bigots can use them to spread their hatred, cannot be so conscripted either. This decision means anyone can say no to providing their expressive services to those with messages of hate.

We often think of the First Amendment as a defense against government censorship, or the silencing of certain speech. This decision makes clear that what the government is trying to do here is compel speech, and that such compulsion also violates the First Amendment.

[T]he government may not compel a person to speak its own preferred messages. See Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 505-506 (1969); see also, e.g., Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974); Wooley v. Maynard, 430 U. S. 705, 714 (1977); National Institute of Family and Life Advocates v. Becerra, 585 U. S. ___, ___ (2018) (NIFLA) (slip op., at 8). Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. See Hurley, 515 U. S., at 568-570, 576; see also Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U. S. 47, 63-64 (2006) (FAIR) (discussing cases). All that offends the First Amendment just the same. [p. 8-9].

Imagine what would happen if the Court had not said it does, and that compulsion could be allowed when the government decided the need is strong enough. The freedom to speak is as important as the freedom not to speak, because one way to fight back against odious messages is to not spread them yourself. What this decision says is that governments cannot force anyone to do that spreading.

Articulating this point as unequivocally as it did is significant, and not just in reference to the already pending challenges against the Texas and Florida laws, where commercial platforms are being targeted for their expressive discretion. The reality is that most expression needs to be subsidized in some way, whether via a business model or some other means. If First Amendment protection could decrease when money is involved it would impose a significant burden on the ability on anyone expressing themselves freely, if by being able to afford to engage in that expression could somehow ebb that freedom.

Consider what a contrary approach would mean. Under Colorado's logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic-no matter the underlying message-if the topic somehow implicates a customer's statutorily protected trait. 6 F. 4th, at 1198 (Tymkovich, C. J., dissenting). Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require an unwilling Muslim movie director to make a film with a Zionist message," or an atheist muralist to accept a commission celebrating Evangelical zeal," so long as they would make films or murals for other members of the public with different messages. [p. 11-12]

Many courts as of late however have been giving short shrift to that unavoidable reality and finding that having a commercial quality to expression somehow changes the constitutional inquiry to result in lesser First Amendment protection. This decision provides ammunition to push back against that trend.

Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is the sole member-owner." Id., at 181a; see also post, at 33 (opinion of SOTOMAYOR, J.) (emphasizing Ms. Smith's commercial" activity). But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world's great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspa pers. See, e.g., Joseph Burstyn, Inc., 343 U. S., at 497-503; Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 114-116 (1991); Grosjean v. American Press Co., 297 U. S. 233, 240-241, 249 (1936). [p. 16-17]

Indeed, there is an alarming trend on this front even just in Justice Sotomayor's jurisprudence from this year alone, in the dissenting opinion here, and a few weeks ago in the majority opinion she wrote in the Warhol copyright case. Both opinions seemed to reflect a belief that the commercial exploitation of expressive acts somehow lessened the protection for that expression. In Warhol she found that a profit motive could be disproportionately dispositive to whether there could be a finding of fair use, a key limit on a copyright's power the First Amendment requires to ensure that copyright doesn't damage discourse, and here she expressed concern about business enterprises asserting First Amendment rights over their expressive activities because their expressive business is one seeking to derive profit from the selling of expressive products. In both cases she seems to have been blinded by the fact that the speaker was conducting business involving speech and as a result lost sight of the true issue involved in both cases, which was how law should not be allowed to interact with the substance of the speech's message.

Because there is nothing in the First Amendment that limits its protection to non-commercial expression, nor could there be given the protection the Court has found previously for newspapers and other profit-motivated entities whose businesses earned money from expression. Nor could there be a rule that the First Amendment only protects individuals. After all, if individuals have the right of free expression, they should retain these rights even when they speak in groups, whether informally or in organizational entities. There is no principled reason why those rights should be extinguished just because individuals have come together to pursue their expression as a group, or for money. If the fact that businesses were involved could lessen the protection of the First Amendment it would not only chill every traditional media enterprise, or Internet business, but also any social movement with a formal organizational structure and operational costs to fund.

As we've seen with the laws in Texas and Florida, governments can be keen to meddle with online expression. This case reminds that the First Amendment cannot tolerate such meddling.

As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to forc[e her] to create custom websites" celebrating other marriages she does not. Colorado seeks to compel this speech in order to excis[e] certain ideas or viewpoints from the public dialogue." Turner Broadcasting System, Inc. v. FCC, 512 U. S. 633, 642 (1994). Indeed, the Tenth Circuit recognized that the coercive [e]liminati[on]" of dissenting ideas" about marriage constitutes Colorado's very purpose" in seeking to apply its law to Ms. Smith. [p. 10-11].

If the Court had ruled otherwise and given a green light to this meddling (in this case, as part of an attempt to curtail hate) there is the danger that it would have the effect of greenlighting other meddling (including those attempts to foster hate). Having a decision saying that, even in the face of a very good reason for government meddling, the government still cannot, helps guard against the next attempt by a government to meddle, which may not be so well-justified. Government officials bent on meddling with expression for damaging reasons are quite adept at packaging up whatever abuse they want to do with some sort of apparent justification, however specious, so a rule that disallows any meddling is therefore much more protective of speech rights than a rule that allows some.

The dissent is, of course, correct that the government's purpose in regulating the web designer's expression is a particularly compelling one, to make sure that none in society are excluded from it due to prejudice against a protected characteristic. Even the majority opinion would seem to concur. [p.12-13]. But having a compelling purpose is not alone enough to allow for the government to impinge upon free expression. To survive the needed judicial scrutiny there must be more to justify this impingement, and here the Court found there was not.

Nor is it any answer, as the Tenth Circuit seemed to suppose, that Ms. Smith's services are unique." In some sense, of course, her voice is unique; so is everyone's. But that hardly means a State may coopt an individual's voice for its own purposes. In Hurley, the veterans had an enviable" outlet for speech; after all, their parade was a notable and singular event. In Dale, the Boy Scouts offered what some might consider a unique experience. But in both cases this Court held that the State could not use its public accommodations statute to deny speakers the right to choose the content of [their] own message[s]." Hurley, 515 U. S., at 573; see Dale, 530 U. S., at 650-656. Were the rule otherwise, the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government's preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise. [p. 14-15]

As the Court noted, there are other web designers. This decision helps ensure that there can be, because the consequence of allowing any to say no to producing messaging they don't want, more able to say yes, including to messages speaking against bigotry and abuse, because ensuring that the expressive rights of web designers are protected from government interference means they won't be afraid to go into business helping people speak if by doing so they can be conscripted to express things they do not want to - including, as Florida and Texas have tried to mandate, messages that further discrimination.

That the Court rejected the justification for the Colorado law as a basis to impinge upon the web designer's free expression is separately important because it reminds that the law cannot operate against speech based on the content of that speech, which is a traditional component of First Amendment jurisprudence. When the government starts evaluating the content of expression it starts playing the role of an unwelcome censor, deciding which ideas are acceptable and which are not. Indeed, the Court noted with alarm that the very purpose of the government action here was to eliminate" certain ideas. [p. 20] Which is exactly the problem in Florida and Texas where the attempt to speech police is to favor the ones that victimize.

[T]he dissent refuses to acknowledge where its reasoning leads. In a world like that, as Chief Judge Tymkovich highlighted, governments could force an unwilling Muslim movie director to make a film with a Zionist message," they could compel an atheist muralist to accept a commission celebrating Evangelical zeal," and they could require a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions from the public with different messages. Perhaps the dissent finds these possibilities untroubling because it trusts state governments to coerce only enlightened" speech. But if that is the calculation, it is a dangerous one indeed. [p. 23-24]

The question this case raises is whether a state can force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead." [p. 19]. The dissent fairly argues that the interests of equal protection should be weighed heavily in favor of such a prescription, and there is indeed tension between the constitutional interest in protecting minorities and the constitutional interest in protecting free expression. But such elevation would be an exception from the general rule of content neutrality, and once exceptions start to be made they can easily soon eat the whole. Because if we have a good reason here, we'll have a good reason there, and pretty soon the right to free expression will be so conditional it won't be a right anyone can rely upon, no matter how much they need to push back on abusive power, including a censoring one.

A commitment to speech for only some messages and some persons is no commitment at all. By approving a government's effort to [e]liminat[e]" disfavored ideas," today's dissent is emblematic of an unfortunate tendency by some to defend First Amendment values only when they find the speaker's message sympathetic. But [i]f liberty means anything at all, it means the right to tell people what they do not want to hear." 6 F. 4th, at 1190 (Tymkovich, C. J., dissenting) (quoting G. Orwell). [p. 25]

Controversy emerged shortly before the decision was issued alleging that the web designer was not actually approached to build a website she didn't wish to make. It's a serious charge, but not one that itself impugns this particular result. Part of the reason is because the record supporting the decision was a series stipulations made by the parties, including the state of Colorado admitting that it would enforce its law against a web designer refusing to make a website about a gay marriage. That threat of a potential constitutional injury was enough for both the Tenth Circuit and the Supreme Court to find standing for the web designer's challenge.

For its part, the Tenth Circuit held that Ms. Smith had standing to sue. In that court's judgment, she had established a credible threat that, if she follows through on her plans to offer wedding website services, Colorado will invoke CADA to force her to create speech she does not believe or endorse. The court pointed to the fact that Colorado has a history of past enforcement against nearly identical conduct-i.e., Masterpiece Cakeshop"; that anyone in the State may file a complaint against Ms. Smith and initiate a potentially burdensome administrative hearing" process; and that Colorado [has] decline[d] to disavow future enforcement" proceedings against her. Before us, no party challenges these conclusion. [p. 5].

And it is good that they did because having broad ability to bring First Amendment challenges against abusive laws is critical. When it comes to laws that chill expression we don't want that expression to be chilled first before we've had a chance to find that it had been unconstitutional to chill it; we want to make sure that it was never chilled at all. Which means that the people who think they are about to be injured by this sort of state action need to be able to challenge it before they've incurred the injury, which means that they need to have the standing to bring the challenge based on prospective injury, rather than only an actualized one.

We've also seen how important this sort of broad standing is for vulnerable populations before, such as in the constitutional challenge to FOSTA, where it required the DC Circuit to affirm that the plaintiffs did indeed have standing to bring the lawsuit challenging how FOSTA impinged on their expressive rights. In that case the law had already gone into effect and led to actual injury, but some injury was still prospective and only threatened by state officials. While we're still waiting on a rule addressing FOSTA's constitutionality, the challenge would have ended long ago if the plaintiffs had been found not to have standing. Which is why the broad approach to standing taken by the decision in the 303 Creative case is so important, because if the rule were that an injury must always have been accrued before a lawsuit challenging the law could be brought, it would let bigoted governments get away with enforcing their censorial laws to shut down speech against them. Whereas if standing is broad, then the laws might be able to be enjoined before they were able to do their damage.

In sum, whether unwittingly or otherwise, and despite the declared bigotry of this particular plaintiff, with this decision the Supreme Court majority has given everyone, including the most vulnerable among us, some powerful tools to fight those who would victimize them. It did so by continuing to reinforce its long line of cases making clear that the First Amendment protects everyone, from the worst among us to the best, by making sure that we are all protected.

[T]he First Amendment's protections [do not] belong only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive. See Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 468-469 (2007) (opinion of ROBERTS, C. J.) (observing that a speaker's motivation is entirely ir relevant" (internal quotation marks omitted)); National So cialist Party of America v. Skokie, 432 U. S. 43, 43-44 (1977) (per curiam) (upholding free-speech rights of partic ipants in a Nazi parade); Snyder, 562 U. S., at 456-457 (same for protestors of a soldier's funeral). [p. 17-18]

Even terrible people wishing to express their terrible ideas about other people are protected, whether to express a view they wanted, or, as in this case, to refuse to be forced to express a view they didn't want to convey. Time and time again the Court has found that the First Amendment's protection of free expression protects the right of anyone to exercise that expressive discretion, regardless of how odious. And that it must protect that expressive discretion, to leave even the worst people free to say or not say what they choose, for it to protect anyone with more meritorious ideas and leave them similarly free to choose what to say as well.

Thus this decision should be something to cheer, but that inclination to cheer is naturally tempered by the Court's conspicuous failings. For instance, although a generous rule on standing for First Amendment challenges is a good one, it is not necessarily one the Court has previously adhered to. Historically it has required more tangibility to the prospect of an injury than was available here, requiring an actual case and controversy because typically the Supreme Court has refused to be in the business of rendering advisory opinions. With so few facts in the record to pin this decision on it ends up seeming like an officious Court was just a bit too eager to produce a ruling that, at least on the surface, seemed to stick it to those it disfavored. Even though aggressively asserting jurisdiction here was not necessarily bad given the likely prospect of the threatened injury, and the solid defense of free expression that resulted, which would have been undermined by the Tenth Circuit's ruling had the Court not reviewed it, it still does feel arbitrary for the Court to have asserted itself here and not in all other similarly situated cases. And it is that arbitrariness that makes all its decisions feel unfair and unjust, even when on their own merits, as here, they are not.

It is similarly hard to credit the result in this case given the animus the Court has expressed in other cases, including some it oddly cited here. After all, Boy Scouts of America v. Dale (allowing the Boy Scouts to discriminate against gays) and FAIR v. Rumsfeld (requiring law schools to let the military recruit on campus even when it was still excluding gays) were cases involving expressive association, which is not quite the same issue present here. (The Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston case, allowing gays to be kept out of a parade by organizers, is also cited, but that was a case where the issues were much more similar to this one, given the explicitly expressive nature of a parade.) The Rumsfeld decision also was one that found an exception to the protection the First Amendment should have afforded, and one the Court seems to have made in furtherance of its own biases.

Which thus raises the following question here: will the protective principles announced in this decision be broadly applied, even to litigants with which the Court doesn't agree, or will the Court instead in the future find some specious basis to refuse to invoke them because it prefers the result denying them would bring? It is a serious question that this Court only has itself and its increasingly inconsistent adherence to precedent to blame for prompting.

But whether the Court might someday eat its words does not mean that these words in this decision were not the right words for the moment. Even if this Court were to someday abandon them, in the meantime they provide every other court with guidance to ensure that they, too, in matters before them, protect free expression from attacks by government, including those who would attack it to further their bigotry.