Web designer’s free speech Supreme Court victory is a win for all

The high court victory of a woman who declined to create a website promoting gay marriage affirmed the long-held tenet that the US government can’t force you to say things you don’t believe, say Kristen Waggoner, president of Alliance Defending Freedom, and Nadine Strossen, past president of the American Civil Liberties Union. 

This article originally appeared in Bloomberg on July 10, 2023.

In 303 Creative v. Elenis, the US Supreme Court prohibited Colorado from forcing Lorie Smith to create a message that contradicted her beliefs. Some progressives have criticized the decision—not because of the legal principles it enforced, but because of Smith’s specific beliefs at issue.

The court ruled the government may not compel Smith to endorse same-sex marriage. But it did so because of fundamental free speech tenets that benefit all of us, regardless of our views on same-sex marriage or any other issue.

Our First Amendment operates under a Golden Rule: “Do unto speech you oppose as to speech you support.” If we don’t protect the speech we loathe, we can’t protect the speech we love. The 303 Creative decision reaffirms this bedrock principle. And, following a long line of cases, it rejects government efforts to compel speech or coerce ideological conformity.

In 1943, the American Civil Liberties Union represented Jehovah’s Witnesses in West Virginia State Board of Education v. Barnette. The state sought to compel schoolchildren to salute the American flag to instill national unity. But, even at the height of World War II, the court held that the First Amendment barred this compelled speech, declaring that “if there is any fixed star in our constitutional constellation, it is that no official … can prescribe what shall be orthodox” or “force citizens to confess by word or act their faith therein.”

That fixed star protects all views, whether popular and majoritarian or disfavored and contrarian. And, as Barnette said, it shields “the right to differ as to things that touch the heart of the existing order.” After all, today’s heresies are sometimes tomorrow’s orthodoxies.

Colorado acknowledged that Smith, a website and graphic designer, customizes each website she creates—combining traditional art with technical elements to express herself through online works of art. Smith wants to create custom wedding websites consistent with her belief that marriage is the union of husband and wife.

The court’s ruling safeguards free speech rights while ensuring nondiscrimination laws remain firmly in place. States may—and should—continue to outlaw denials of goods or services based on a protected classification.

Colorado also agreed Smith has always been intentional about ensuring the messages she creates align with her personal values. She declines to create messages that promote certain political views or that disparage other people, including those who identify as LGBTQ. The messages she will not express remain constant, no matter who asks her.

As Colorado stipulated, Smith is “willing to work with all people regardless of … sexual orientation.” Her decisions about what to create turn on the message she’s communicating, never the person requesting it. That means Smith designs websites for everyone, including her LGBTQ clients, so long as the message she is asked to create is consistent with her beliefs.

Colorado additionally admitted that thousands of other website designers create custom websites. And the lower appellate court found same-sex couples have no problem accessing websites to celebrate their weddings. Beyond conceding these critical facts, Colorado agreed with the central constitutional principle at stake: The government may not “force[] a speaker to convey the government’s ideological message.”

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Given these concessions, you might wonder why this case went all the way to the Supreme Court. Colorado still tried to commandeer Smith’s speech, demanding she create and publish custom websites celebrating a view of marriage that violated her beliefs. Back in Barnette, the Supreme Court condemned this type of compulsion as an invasion of “the sphere of intellect and spirit.”

It’s also antithetical to our democratic form of government. As the appellate court put it, Colorado’s goal was the shockingly anti-democratic one of “excising certain ideas or viewpoints” the state disliked “from the public dialogue.”

Fortunately, in 303 Creative, the Supreme Court rejected Colorado’s unconstitutional efforts, declaring it violated the First Amendment by “us[ing] its law to compel” Smith “to create speech she does not believe.” The court confirmed “the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider unattractive, misguided, or even hurtful. But tolerance, not coercion, is our Nation’s answer.”

Consistent with the free speech Golden Rule, this decision ensures that an LGBTQ website designer can’t be forced to create a website criticizing same-sex marriage. But this case also protects speech far beyond the marriage context. A Democratic artist need not design posters promoting the Republican Party, nor must a videographer who supports Roe v. Wade film a pro-life rally.

Consider the consequences if the Supreme Court had ruled the opposite way. The court framed the legal question the case posed as “whether applying a public accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

The court’s ruling safeguards free speech rights while ensuring nondiscrimination laws remain firmly in place. States may—and should—continue to outlaw denials of goods or services based on a protected classification.

That’s the beauty of free speech. It allows all of us to discuss our common ground, debate our differences, and pursue our varying visions of truth and justice free from government compulsion.

As Colorado itself stipulated, Smith’s websites do constitute expression that she creates. The Supreme Court rightly re-affirmed that the government may not compel any of us to say things we don’t believe.

In 303 Creative, Smith’s websites constitute expression that she creates—she selects her projects based on the message, not who requests it. The Supreme Court rightly re-affirmed that the government may not compel any of us to say things we don’t believe.

That’s the beauty of free speech. It allows all of us to discuss our common ground, debate our differences, and pursue our varying visions of truth and justice free from government compulsion.

The case is 303 Creative LLC v. Elenis, US, No. 21-476, 6/30/23.

Kristen Waggoner is CEO and president of Alliance Defending Freedom and argued 303 Creative v. Elenis before the US Supreme Court on behalf of Lorie Smith. Nadine Strossen is a past president of the American Civil Liberties Union and senior fellow at the Foundation for Individual Rights and Expression. Reproduced with permission. Published July 10, 2023. Copyright 2023 Bloomberg Industry Group 800-372-1033. For further use please visit https://www.bloombergindustry.com/copyright-and-usage-guidelines-copyright.