Conduct, Content, and the Supreme Court

On December 5th, 2022, the Supreme Court of the United States heard the case of 303 Creative LLC. v. Elenis, a case that was marketed as pitting free speech against LBGTQ rights.^[1] In this case, Lorie Smith, the sole owner and creator of 303 Creative LLC., wanted to create wedding websites; she was afraid, however, that the Colorado Anti-Discrimination Act (CADA) would compel her to create websites for the weddings of same-sex couples, which goes against her sincerely held religious beliefs. She sought an injunction from the Colorado courts that would allow her not only to refuse to create such content but allow her to post a notice saying she was not willing to provide that kind of service.^[2]

Justice Gorsuch and the majority of the Supreme Court ruled in favor of Smith (6-3), as stated by Gorsuch in his Opinion of the Court. Primarily, they held that the public accommodation laws against discrimination were secondary to Smith’s First Amendment rights to expressive speech and that Smith’s business was not entitled equally to everyone as a public service under these laws. Additionally, they believed that forcing her to comply with CADA would create “compelled speech” which would infringe on her First Amendment rights. While I agree with Gorsuch’s theory and understanding of the law, I believe that the Court errs in its application of the law at hand. In his opinion, Gorsuch creates an incomplete picture of public accommodation laws by not including the proper context of their importance, failing to consider fundamental principles of public accommodation laws and ignoring critical precedents of the Court that have protected classes from similar claimed exemptions before. Additionally, he misleads by relying on three legal precedents whose situations are different from the case at hand in substantial ways. I will, however, focus on his specific claim of “compelled speech.” I believe that Justice Gorsuch misrepresents the issue as one of “compelled speech” as opposed to conduct, disregarding the instances when expressive activities are regulated by the government as well as the complexities involved when “content” and “characteristic” are inherently connected.

To begin, Gorsuch held that forcing Smith to comply with Colorado’s Anti-Discrimination Act would create “compelled speech” by the government which would infringe on her First Amendment rights. The core of the First Amendment’s right to freedom of speech is that individuals have the right to believe what they want to believe and that they have a right to express those beliefs. One of the ways the government can infringe upon this right is if it compels an individual to espouse or create speech that goes against their beliefs. Smith’s claim, supported by the Court, is that enforcing CADA, compelling her to create content she does not agree with, goes against her First Amendment right. Any expressive action or activities relating to these beliefs are considered expressive action or expressive speech, and this expressive element is a point that Gorsuch holds onto as the cornerstone of the case: Smith is engaging in expressive speech; the right to expressive speech cannot be taken away from her.^[3]

Up to this point, I agree. Contrary to Gorsuch’s opinion, however, the speech and its expressivity are not the critical point in this case; the conduct relating to expressive activity is. There is no debate, among the majority and the dissenting judges, that speech is being created and that Smith has a right to express what she believes. While her speech in and of itself may be free, “The First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.”^[4] Gorsuch’s claim that the government protects expressive speech and association is true,^[5] but there are certain important caveats. In United States v. O’Brien (1968), the Court ruled against David O’Brien after he protested the Vietnam war by burning his draft card. Although his actions were expressive, the government was not regulating the law against burning draft cards to suppress expression. Thus, the statutes of the O’Brien precedent were born, whereby if the law’s regulation of conduct is unrelated to the suppression of expression and carries out a government interest that cannot be done in a more effective way, the law is considered to not be in contradiction with First Amendment rights.^[6] Efficacy in this case is much intertwined with the importance and substantiality of the government’s interests. In O’Brien, the Court ruled that since the draft cards served many purposes and mutilating the cards prevented them from serving the government’s interest, individuals found breaking the law would be penalized; the “efficacy” was weighed based on a governmental system’s smooth and proper functioning. Any burden on expressive speech in these cases is “incidental,” proving expressive speech can be regulated as conduct. Gorsuch never mentions O’Brien but disagrees that the burden of enforcing CADA would be “incidental,” as he claims that enforcing CADA, thus compelling Smith to speech, goes against her rights.^[7]

First, Gorsuch focuses his attention on the “content” element, whereas O’Brien indicates that the “conduct” element is a more important factor in this case. CADA meets the O’Brien statutes, as it is not aimed at suppressing speech and is an effective law in the state of Colorado for fighting discrimination. The law does not dictate the content of any business or individual’s speech at all. An individual or business is only “compelled” if, and to the extent, that the company offers speech in a discriminatory manner. In this case, Colorado is not forcing Smith to speak any message of the State. She could provide only quotes and templates on her website that adhere to her moral beliefs, and the government would not compel her to say anything different; “All the company has to do is offer its services without regard to customers’ protected characteristics.”^{[8] [9]} Several legal precedents also indicate that public accommodation laws have conflicted with “compelled speech” before. In Runyon v. McCrary (1976), the Court ruled that “[a private] school’s “practice” of denying educational services to [racial] minorities was not shielded by the First Amendment.”^[10] The Court clarified that “[r]equiring the schools to abide by anti-discrimination law was not the same thing as compelling the schools to express teachings contrary to their sincerely held belief that racial segregation is desirable.”^[11] Gorsuch mentions nothing of Runyon, a case that Sotomayor says “the majority studiously avoids.”^[12] The efficacy of the O’Brien statutes has been used before in other cases as well. Its standards were upheld most notably in Tinker v. Des Moines Independent Community School District.

Secondly, Gorsuch misrepresents the case at hand by drawing a clear line between characteristics and content that in reality is more complicated. Smith claims she is not discriminating based on any characteristic; she simply refuses to create content against her beliefs. She objects not to the person but to the speech that providing the service would create. Gorsuch defends this argument on the grounds that the First Amendment’s “protections belong to all, including to speakers whose motives others may find misinformed or offensive.”^[13]

The issue in this case, however, is not the right to free speech, as Gorsuch claims. The issue is that characteristic and content overlap in a way that Gorsuch does not touch on. There is no dispute that the content of the website can convey whatever speech Smith wishes, but as a business owner, she must be willing to offer everyone this speech. She cannot refuse to provide LGBTQ couples with an identical service she provides for heterosexual couples. Smith makes the argument that she would be willing to provide LGBTQ members with other types of websites, just not wedding ones, but that harkens back to Katzenbach v. McClung (1964): serving one class a different array of services, or a limited menu, is still discrimination as it denotes that one class is deserving of different treatment because of a characteristic. Additionally, the services provided (wedding website design) lead to expressive action of some kind (a wedding website),^[14] and objecting to the content inherently objects, in this case, to the protected characteristic of the couple; in refusing to create a website for a same-sex wedding, Smith is refusing to provide her services for a same-sex couple based on a protected characteristic. Sotomayor discusses this in her dissent, referring to characteristic as “status” and content as “message.” She says, “The majority insists that petitioners discriminate based on message, not status. The company, says the majority, will not sell same-sex wedding websites to anyone. It will sell only opposite-sex wedding websites; that is its service. Petitioners, however, cannot define their service as “opposite-sex wedding [websites]” any more than a hotel can recast its services as “whites-only lodgings.”^[15] If a business such as Smith is offering a public service, they cannot refuse to serve someone simply because it produces speech they do not like.

While I agree with the Court’s definitions, and I acknowledge that the First Amendment right to freedom of speech is important, I believe that Court came to the wrong conclusion. Gorsuch misrepresents the issue as one of “compelled speech” as opposed to one of conduct and denial of service, disregarding the instances when expressive activities are regulated by the government, as well as the complexities involved when “content” and “characteristic” are inherently connected. While this case may seem like just another public accommodation law case, the implications of the Court’s decision to rule in Smith’s favor could create new loopholes for discriminatory behavior. Professor Theo Myhre from the University of Washington described the impact of the case, saying, “​​This case creates an exception under the First Amendment free speech provision — or for people engaged in expressive activities — when they disagree with the message being sent in that activity. So now businesses that are open to the public, under public accommodations law, have a free speech exception and are able to discriminate against LGBTQ people, if they disagree with the message in the expressive activity.”^[16]

Author

Katrina Fay

Katrina Fay, class of 2027, is from South Bend, IN. She is studying political science, economics, and theology. Inspired by her love for legal research and passion for social justice, her essay, “Conduct, Content, and the Supreme Court,” takes a deep dive into the majority opinion of a 2023 Supreme Court case that pitted freedom of speech against LGBTQ+ rights. After college, Katrina intends to pursue a law degree, focusing on either constitutional or international law. Katrina would like to thank Lauryn Sparger, a Hesburgh librarian and law student who helped her access and correctly cite the case, but, most especially, she would like to thank Dr. Ian Gerdon for all his critiques, support, and encouragement throughout the writing process.