from the everyone-is-getting-this-case-wrong dept
In writing online about a case about online expression, I’ll open with a reference to some more online expression: the popular meme featuring the caption, “The worst person you know just made a great point.” And that’s where we are with this case just heard by the US Supreme Court: 303 Creative v. Elenis, where a homophobic website designer does not want to be forced by Colorado law to have to make websites for same sex weddings.
And she should not be forced to, because no matter what one thinks of her, or her views on gay marriage, the First Amendment should prevent anyone from ever being forced by the government to make a website they don’t want to make. It should prohibit such compelled speech regardless of the views implicated, their political popularity, or their social, moral, or ethical merit. And by “should” it is not merely a question of what the First Amendment ought to do, but, as discussed below, what the Supreme Court has already found it to do, and therefore should continue to find it to do.
So hers should not be a hard case to resolve in her favor. Unfortunately, as oral argument revealed, the heightened emotions surrounding her specific views, both for and against, are making it a hard case. By treating it as a referendum on gay rights the First Amendment analysis is ending up unduly complicated, entangled in questions about other constitutional rights, including several others found within the First Amendment itself, even though they only serve to obscure the otherwise obvious constitutional problem with the Colorado law. And one danger with this case is that, if the justices don’t tease apart the different analytical threads successfully, they could do some real doctrinal damage to all the rights the First Amendment protects, especially if they are motivated, as they adjudicate her constitutional challenge, to craft a result that tries to vindicate (or repudiate) the substance of this particular web designer’s views.
For instance, the subject of gay marriage often tends to invoke the First Amendment right of freedom of religion. But this right would be a bad basis upon which to resolve this case. Part of the reason it would be a bad idea is because the Supreme Court has, of late, already upended long-standing establishment clause doctrine to effectively preference certain religious views over others. A ruling in her favor for religious freedom reasons would continue that practice and produce an unstable result (and, at this point, so would a ruling against her, also on this basis). It would also be unnecessary to involve freedom of religion because there are far more compelling constitutional reasons to find in her favor. The only thing religion has to do with this case is that it turns out to be what informs her expressive views. But none of her views, or what informs them, is actually relevant. Because any law that targets these particular views (anti-gay marriage) could just as easily target any other views (for example, pro-gay marriage), regardless of what motivation informed them, religious or otherwise. And even if the court were to say that laws can’t target views informed by religion, it would still be a problem if laws could target views informed by any other reason. Even framed just in terms of online expression, either people are free to choose what websites to make, or they are not. If we instead hinge that freedom to choose what websites to make, or what views to express within them, on why people would make those expressive choices, then the constitutional right for people to choose what they want to say, whether through their websites or via any another expressive means, will already have been lost.
Meanwhile, another analytical red herring for the Court to resist here is the First Amendment right of freedom of association. It may however at first seem relevant because this right is often implicated where there are questions of discrimination, particularly in the offering of goods and services, because the freedom of association, which essentially is the right to discriminate, is often in tension with the right not to be discriminated against. The Court spent much of the oral argument exploring whether a professional web designer could refuse to provide web design services, but this line of analysis, important though it is in other contexts, is an irrelevant distraction here. One key reason it doesn’t belong here is because there appears to be evidence that the web designer in fact does provide design services to gay clientele; the issue in this case is only that she does not want to code websites celebrating gay weddings she does not wish to celebrate (or, indeed, potentially any even heterosexual wedding she also does not wish to celebrate), and regardless of the sexual orientation (or race, or religion, etc.) of the party contracting for her services. In other words, this case is only about the Colorado law trying to require her to create certain online expression she doesn’t want to create – it has nothing to do with her not wanting to serve any clientele she wasn’t inclined to serve, at which point contemplating the bounds of her right of association would be more salient. But here the issue is not about whom she wants to associate with but what she wants to say for them. While the Supreme Court might have the appetite to address now how public accommodations law needs to behave in the shadow of this First Amendment associative right, especially with respect to the provision of personal services, it is important for it to resist that temptation here. It is only the issue of mandated expression that is worth the Court’s attention and ripe for adjudication.
And it is indeed ripe: while some have criticized the pre-enforcement challenge of the Colorado law, because ordinarily a plaintiff can only challenge a law that has already caused an injury, standing doctrine has long recognized how constitutionally untenable it would be to allow laws to create expressive injury and then have the courts say “oops.” When it comes to free expression, pre-enforcement challenges are often necessary and therefore permitted. While some justices fretted at oral argument that the pre-enforcement challenge left only a sparse record for review, it is independently important for the Supreme Court not to be deterred by the posture of this case and to reaffirm the ability to bring pre-enforcement challenges of laws that threaten free expression.
Especially because, at its core, this case is only a speech case. Ultimately the constitutional admonition to “make no law… abridging the freedom of speech” is the only part of the First Amendment that should be operative here, to prohibit the Colorado law and protect the speech rights of any web developer anywhere. Whether, however, the Court zeroes in on it will depend on whether it can recognize the speech issues implicated by website design and how expressive the act of coding a website is, including through the acts of generally authoring it as a vehicle for conveying certain expression and also literally writing the code that conveys it. And we all need to hope that it does, because one of the other significant dangers with this case is that if the Court does not acknowledge the speech impingements at the heart of this case, or see coding a website as somehow less expressive an activity than, say, typesetting a newspaper, it would then leave online expression much less constitutionally protected than offline expression (including for the online version of the newspaper). Per the Court in Reno v. ACLU, online expression is not supposed to be less protected. But unless it sees the Colorado law as being the equivalent of the old Florida law that had once tried to force newspapers to run op-eds it did not want to run – which the Supreme Court in Miami Herald v. Tornillo found was unconstitutional – it will be less protected. (And perhaps worse, it could turn Tornillo on its head and now open the door to a state law that wants to force the Miami Herald to run op-eds celebrating gay marriage. Or, if it could do that, then potentially it could also invite laws requiring op-eds condemning gay marriage too.)
Thus no matter how worthy the pro-marriage view, the bottom line in this case is that it is a view that law would be trying to force people to express, and it is that forcing that should be anathema to the First Amendment’s free expression clause. For good reason, too, because a less robust First Amendment doesn’t just hurt the views that we should detest; it also makes vulnerable those views that are best. It is why the Supreme Court was right to find the First Amendment protected the right of Nazis to march in Skokie despite their odious views, and it is why it also should find the First Amendment protects the right of the web designer to maintain her bigotry here, because even if the First Amendment is found in a particular case to protect the expression of a hateful view, what it is actually doing is ensuring that everyone remains equally free to stand against it. After all, this case isn’t just about this web designer and her intolerant views; it is about making sure that no one ever need to fear being forced by law to express any message about which they disagree, including hateful ones they don’t share.
And so we cannot let our relative opinion for the litigants who have brought these constitutional concerns before the Court outweigh our concern for the constitutional principles at stake. Nor can the Court itself, regardless of whether any particular justice favors or disfavors the web designer’s particular animus. Instead the Court needs to keep its focus on how laws like Colorado’s impinge on the rights of free expression everyone depends on, no matter what their views.
Filed Under: 1st amendment, free speech, gay marriage, supreme court, websites, wedding websites
Companies: 303 creative