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No Shortage Of Controversy When It Comes To First Amendment Free Speech

The Supreme Court’s recent decision in 303 Creative LLC v. Elenis has caused quite a stir. Boiled down to its simplest form, the Court essentially ruled that a Colorado web designer could not be forced to “speak” by creating a webpage about a subject the owner found objectionable. Had the designer refused to design a page for a Neo-Nazi group, the SCOTUS’ support of that right likely would have been met with little opposition. However, in 303 Creative LLC the owner objected to designing a webpage for a gay couple’s wedding. Gay rights activists wasted no time in condemning the Court (and each Justice who joined in the majority opinion) as homophobic judicial activists. Yet as is often the case with court decisions on First Amendment issues, the emphasis is less about what others think of the speech than on the rights of the speaker to speak freely, without government intervention.

Previous First Amendment freedom of speech decisions by the Supreme Court suggest that the 303 Creative LLC decision is not all that different from past precedent. For example, in Texas v. Johnson, 491 U.S. 397 (1989) the SCOTUS in a narrow 5-4 opinion, upheld the right of protesters to burn the American flag as a form of “speech.” Many Americans and particularly those who served in the military, were outraged. They accused the Court of “supporting” flag-burning when in reality the Court upheld the right of those who chose to burn the flag, as a form of speech, not the flag burning itself. These cases illustrate an inherent source of controversy when it comes to free speech – for speech to truly be “free” it cannot be silenced merely because someone, even a majority, may be offended. By the same token, it is contrary to the First Amendment for the government to force people to speak or express themselves as the government might command (in this case, to create a webpage for a gay marriage the designer did not wish to do). The “good” of free speech inevitably comes with the “bad” that the speaker’s message may not be agreeable to others.

It is important to recognize what the 303 Creative LLC decision did not do.  Contrary to some media (including a prominent legal resource) this decision did not allow the web designer to “turn away gay customers.” Chief Justice Roberts, writing for the majority, went out of his way to say very clearly that the Court’s ruling did NOT permit the designer, or any business, to refuse to work for or turn away gays or members of the LGBTQ+ community. Outside of the First Amendment, it is unlawful for any business to refuse service to a customer based on sexual preference, sex, race, religion, gender, or any other characteristic protected by law from discrimination. Justice Roberts’ opinion was narrowly crafted to protect the web designer’s right not to create a webpage the Court equated with speech, not generally to turn away customers for being gay. The Chief Justice wrote: “there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.”  Had the gay couple requested the designer create a website for a business they owned that did not message about sexuality, such as a pie shop, construction company, etc., the 303 Creative LLC decision would not protect refusing to do the website because they were gay.

In time the vitriol will fade once politicians and activists finish using this decision for political gain and influence. They may have a hard time convincing the objective public that the LGBTQ+ community will be without wedding services (webpages, cakes, invitations, etc.) as a result of this decision. There likely is no shortage of businesses willing to create whatever any customer desires. In the end, the Court took no position on gay marriage any more than it sided with flag burning over 30 years ago.  Rather, it continued to hold sacrosanct the right of individuals to hold opinions and speak their truths, even when some don’t like it. After all, the First Amendment has always been about accepting the greater good of allowing people to speak freely, even when others may disagree with the message and deem it bad.

Questions? Contact James Sherman at 952-746-1700 or by email.

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