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This article was first published in the Federalist Society Blog.
On the last day of its recent term, the Supreme Court decided 303 Creative v. Elenis. In my view, the Court’s disposition was correct. But it was rendered more difficult by confusion over how the Constitution’s First Amendment uses the terms “the freedom of speech” and “the freedom . . . of the press.”
As explained below, 303 Creative should have been treated as a press case, not as a speech case. If it had been so treated, the discussion of 303 Creative’s commercial nature would have been unnecessary.
Background of the Case
Lorie Smith owns 303 Creative, a Colorado company that sells custom designs for web sites. (“303’ was Colorado’s original telephone area code.) Ms. Smith wanted to expand her business into designing wedding sites. However, she is a Christian, and she holds the view traditional among Christians, Jews, and Muslims that same-sex marriages violate God’s law.
Ms. Smith knew that the Colorado Civil Rights Commission has been very aggressive in enforcing its version of the Colorado Anti-Discrimination Act (CADA) against others of her faith. Readers may recall the Supreme Court’s 2018 decision in the Masterpiece Cakeshop case, where the Court chastised the Commission for its anti-religious bias.
As a resident of Colorado, I am dismayed at the authoritarian turn this formerly libertarian state has taken on a wide range of issues. By way of illustration, in 303 Creative, both the Court of Appeals (which ruled for the state) and the majority opinion by Justice Neil Gorsuch (also a Coloradan) flagged the state’s official policy in this area: to crush all dissent from people like Ms. Smith. “The CADA’s purpose and history,” Gorsuch wrote, “also demonstrate how the statute is a content-based restriction . . . . . Eliminating such ideas is CADA’s very purpose.”
Moreover, as Gorsuch noted more obliquely, Colorado has expanded its expression-suppression mission far beyond traditional civil rights categories. CADA now privileges certain voluntary behaviors previously seen by most people as anti-social, including “gender expression” and outré hair styles.
The “Commercial” Problem
Much of the dispute in 303 Creative centered on the “commercial” nature of Ms. Smith’s activity. The state argued (as paraphrased by Justice Gorsuch), “this case involves only the sale of an ordinary commercial product and any burden on Ms. Smith’s speech is purely ‘incidental.’” Similarly, Justice Sonia Sotomayor’s dissent emphasized 303 Creative’s commercial nature. She distinguished earlier rulings in favor of free speech by noting that the prior cases involved the rights of “nonprofit expressive associations.”
However, the Court held that the commercial nature of the firm was not dispositive because “Ms. Smith does not seek to sell an ordinary commercial good but intends to create ‘customized and tailored’ speech for each couple.”
Modern First Amendment Law
Current free speech jurisprudence is mostly a product of the Court’s 20th century First Amendment decisions. Those decisions relied very little on how the Founders understood the Amendment’s terms. Instead, 20th century Justices seem to have relied more on instinct and their own recent precedents. Where the First Amendment is concerned, that practice continues among most of the current Justices, as exemplified by this term’s decision in Counterman v. Colorado.
Unfortunately, the lack of connection between modern jurisprudence and the original meaning of the First Amendment creates serious problems. I have written previously of the unnecessary confusion in modern anonymity/donor privacy cases. As explained below, another product of this lack of connection is the varying levels of protection afforded commercial and non-commercial writings.
Freedom of the Press
Of course, members of the founding generation were unfamiliar with electronic broadcasting—that is, radio, television, and the internet. But they were very familiar with the important distinction between (a) speaking directly and (b) speaking through a medium.
During the Founding-era, “freedom of speech” invariably referred to in-person communication. Protection for “freedom of speech” applied in legislative and other assemblies, in orations, and in verbal discourse between individuals.
By contrast, the law of “freedom of the press” (also commonly called “liberty of the press”) protected communication through media. The nature of the medium didn’t matter: It could be a newspaper, an op-ed, a letter to the editor, a written circular, a poster (“broadside”), a sign, a leaflet, a book, or a pamphlet. The law of press freedom protected the publisher, editor, distributor, and author.
There were recognized legal limitations on both freedom of speech and of the press. However, the limitations applicable to one did not necessarily apply to the other. This was because of differences between speaking directly and speaking through a medium. For example, one’s anonymity was protected when one spoke through a medium, but not when one spoke directly.
Additionally, it was more difficult to recover damages for spoken slander than for printed libel. The reason was explained this way: A defamatory statement made in person dissipated into air, but a defamatory statement communicated by a medium was preserved, often resulting in dissemination across distances of space and time.
Despite technological advance, these differences remain relevant today. An in-person insult is heard only by those present, and is not preserved in permanent form. Defamation on a website, written advertisement, or even a radio interview may be preserved indefinitely and be seen or heard by millions of people.
At one point, Justice Gorsuch seemed to acknowledge the continuity of principle: “A hundred years ago, Ms. Smith might have furnished her services using pen and paper.” Unfortunately, he did not recognize the implications of his comment. He added that “Those services are no less protected speech today because they are conveyed with a “voice that resonates farther than it could from any soapbox.’” Instead, he should have added that those services were, and are, protected as freedom of the press because, being communicated through a medium, they “are conveyed with a voice that resonates farther than it could from any soapbox.”
During the Founding-era, “freedom of the press” was understood to protect for-profit activities and communications as much as any other activities and communications. Most newspapers were, after all, for-profit businesses. The protection extended to commercial messages. As Thomas Bradbury Chandler, a prominent American Tory, wrote in 1775, “A free press is the channel of communication as to mercantile and public affairs” (emphasis added). A March 28, 1788, article in a New Hampshire newspaper described the value of newspapers largely by referring to their business content:
In [newspapers] we find many interesting thoughts in . . . agriculture, and commerce . . . The merchant learns the general state of trade, hears the prices current . . . thus he and the insurer are mutually advantaged . . . . The artist hears of employ[ment] or presents an advertisement of the various things he has for sale . . . .
The First Continental Congress also officially emphasized the very broad sweep of liberty of the press—far beyond mere politics—in its Letter to the Inhabitants of the Province of Quebec (1774).
Indeed, in three decades of Founding-era study, I have never come across any suggestion that commercial communication was entitled to less protection than other forms of expression.
Once we understand that Ms. Smith was exercising freedom of the press rather than freedom of speech, the for-profit status of her firm becomes irrelevant. Even today, we know that government may not compel a for-profit newspaper, for example, to publish unwelcome content. The Supreme Court so held in Miami Herald v. Tornillo.
By parity of reasoning, government may not compel Ms. Smith to create websites for same-sex weddings—or for any other kind of wedding she may object to.