For Artists Like Colorado’s Lorie Smith, The First Amendment Protects The Right Not To Speak

This coming week the Supreme Court will hear 303 Creative LLC v. Elenis, a case that offers the court an opportunity to reconcile the growing tension between the First Amendment’s free speech guarantees and public-accommodation laws.

Public-accommodation laws have generally coexisted peacefully with the First Amendment. Yet in a disturbing new trend, governments across the country claim the power to compel speech under the aegis of such laws. The crux of the question presented in 303 Creative is whether artists — indeed all Americans — remain free to say only what they believe.

The plaintiff in 303 Creative, Lorie Smith, is a website designer who combines the traditional elements of art with modern technology. Every word she writes, every graphic she designs, and every custom website she crafts is original and expresses a unique message. The parties all agree that Smith’s websites are speech. Smith and Colorado further agree that she serves everyone and that she creates custom websites for people from all walks of life, including her LGBT clients. 

These concessions decide this case. Applying Colorado’s law to change Smith’s speech violates the First Amendment. States can and do protect their citizens from being denied access to essential goods and services based on who they are. No one is arguing — and the Alliance Defending Freedom would oppose any argument — to allow conduct that rejects an entire class of people. But when the government targets speech, rather than conduct, the First Amendment’s protections apply. 

As the Supreme Court unanimously said in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” 

Under the compelled-speech doctrine, the government may no more force individuals to affirm certain beliefs than it may require them to convey the government’s own message. When speech is compelled, individuals are forced into betraying their own beliefs. Per Justice Robert Jackson’s oft-cited opinion in West Virginia v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Yet in 303 Creative, Colorado claims the authority to compel Smith to confess by word her faith in Colorado’s mandated orthodoxy instead of her own. Colorado requires Smith to create custom same-sex wedding websites — speech — even though doing so violates her deeply held beliefs. Regardless of your beliefs about marriage (or any other topic), 303 Creative raises deeply significant questions about whether the government may force people to speak and promote messages with which they disagree. 

The ability to choose one’s words is central to self-autonomy and to self-government. To silence certain disfavored viewpoints

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