No, the government cannot compel speech for any reason

Does anyone really want to live in a world where you can be forced to create something against your conscience for any reason? 

Last week, progressives were appalled when the Supreme Court ruled that a Colorado law could not force a Christian website designer to develop a site that promotes gay marriage.   The decision in 303 Creative v. Elenis was largely seen as a contest between competing priorities, meaning the Court could have chosen to protect LGBTQ rights or protect religious beliefs.  For example, ABC News characterized the case as whether “creative businesses can refuse to serve LGBTQ+ customers citing First Amendment free speech rights.”  Progressive Justice Sonia Sotomayor took this approach in her dissent, noting that this is the first time in history the court has granted a business the right to refuse service to a member of a protected class.  As she saw it, “the decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity.”  “The decision threatens to balkanize the market and to allow the exclusion of other groups from many services,” she continued. “A website designer could equally refuse to create a wedding website for an interracial couple, for example.”  Colorado Attorney General Phil Weiser was also critical of the decision, noting “This deeply concerning opinion is far out of step with the will of the American people and American values.”   “The opinion represents a radical departure from decades of Court precedent and fails to uphold the principle of ‘Equal Justice for All’ inscribed on the U.S. Supreme Court building.”  President Joe Biden called the ruling “disappointing.”  “While the Court’s decision only addresses expressive original designs, I’m deeply concerned that the decision could invite more discrimination against LGBTQ+ Americans,” the President said. “More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations – including people of color, people with disabilities, people of faith, and women.”

There is potentially some truth to these claims.  The decision does offer broad latitude for creators to decide what they wish to create and it is possible some people will be refused on these grounds, but the real question is:  How else would it possibly be?  Does anyone really want to live in a world where you can be forced to create something against your conscience for any reason?  Progressive dissent largely rests on the concept of “public accommodation,” claiming that the state has a vested interest in ensuring equal access to facilities including private businesses.  This is undoubtedly true.  No fair minded person believes a business should be able to deny entry to a person for being black, gay, or whatever.  Justice Sotomayor’s dissent starts from this non-controversial notion.  She noted, rightly, that “a public accommodation law ensures equal dignity in the common market” and that personal dignity is not based on any specific transaction.  Here she quotes a Congressman during the debate over the Civil Rights Act in 1964.  “Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his (social identity).”  This is also true, but from there she reaches a rather frightening conclusion.  In her view, public accommodation leads to a public market that is a creation of and completely controlled by the state.  “A public accommodations law does not force anyone to start a business, or to hold out the business’s goods or services to the public at large. The law also does not compel any business to sell any particular good or service. But if a business chooses to profit from the public market, which is established and maintained by the state, the state may require the business to abide by a legal norm of nondiscrimination. In particular, the state may ensure that groups historically marked for second-class status are not denied goods or services on equal terms.”  Even if you set aside the echo of President Barack Obama’s infamous “you didn’t build that” moment, it’s unclear whether Justice Sotomayor believes business owners have any rights at all.  She does not state that belief outright in the dissent, but what other conclusion can one reach if the market is both “established” and “maintained” by the state, and the only recourse she allows is that the state cannot “force” anyone to either “start a business” or compel anyone to “sell any particular good or service”?

In other words, if you wish to own a business, you will do what the state says, when the state says it.  If you do not like it, you can close your business, no other freedoms need apply.  Further, the state can engage in discrimination of its own, to “ensure that groups historically marked for second-class status are not denied goods or services on equal terms,” suggesting that perhaps some are more equal than others in her mind.  In neither case does Justice Sotomayor acknowledge the rights of the business owner, or indeed any conflicting rights at all, even those such as freedom of speech and religion that are enshrined in the Constitution, or she feels those rights are entirely subservient to the demands of the state, making them no rights at all.  It’s hard to overstate how radical this position truly is.  People – including people organized into businesses – have generally been accorded broad rights of association distinct from accommodation.  It is true that I cannot bar someone from entering an establishment or refuse service based on race, ethnicity, or sexual orientation, but no one is alleging 303 Creative did any such thing.  Rather, they refused to develop a specific work for a specific purpose, which is fundamentally distinct from the traditional concept of accommodation and denial of service.  In this case, the customer was not rejected because they were gay, nor were they blanketly barred from any service because of their sexual orientation.  At issue was the details of the website they wanted 303 Creative to build and the pro-same sex marriage message they wanted to broadcast.

If they had wanted a generic business website or a website with a message that 303 Creative supported, they would not have been turned down.  Therefore, the issue is not discrimination related to providing a publicly available service, which we all agree should not be permissible in a free and fair market, but discrimination related to content, which we should all equally agree happens every day for obvious reasons and is essential in a free society. Once again, how else would it be?  Businesses make decisions large and small about who to work with all the time.  No one, for example, had a problem with stores that pulled My Pillow merchandise after the owner, Mike Lindell, made controversial statements in the wake of the 2020 election.  Does anyone believe they would not have been able to do that if Mr. Lindell was black or a homosexual?  Closer to the details of this particular case, do we truly think an advertising company can be compelled to create a campaign on behalf of a cause they do not agree with simply because the person requesting the work is from a protected class?  There are agencies which serve primarily Democrat or Republican causes.  Can the state force one to work on the other if the candidate is a member of a special class?  Let’s imagine for a moment a gay neo-Nazi, given this is the age when White supremacy has begun infecting a broader populace.  He or she tries to commission a website praising Adolf Hitler and the Third Reich, and calling for a renewal of those values and a new genocide.  In addition to building this website, he or she seeks an advertising agency to promote the next Reich on social media.

I think it’s fair to assume that almost everyone would agree both of these companies have an absolute right to refuse to work on these projects regardless of who requested them or why, but Justice Sotomayor does not, apparently. In her view, the state has created a public marketplace and written laws to protect certain classes of people from discrimination and she admits no limit on these laws, save those the courts would administer.  The only pertinent question is who is asking for the work to be performed, not the content of the work itself.  If a member of a protected community asks, they cannot be refused on any grounds or it is discriminatory.  Conceivably, given that she has subsumed First Amendment rights in favor of public accommodation laws, other laws can be deemed subservient as well.  If a member of a protected class were to ask for a site promoting pedophilia, what legal regime would apply?  Could a designer be compelled to work on that site?  Why not under this standard?  To be sure, I highly doubt Justice Sotomayor would agree with this assessment – or feel inclined to compel someone to produce neo-Nazi propaganda – but that would only prove the underlying point.  The content matters, not simply the person asking for it.  In the 303 Creative case, pro-gay marriage content is considered broadly accepted by the public and therefore people can be compelled to create it.  Imagine, however, the inverse.  Less than thirty years ago, President Bill Clinton signed the Defense of Marriage Act into law.  Barely ten years ago, President Barack Obama ran a successful reelection campaign while insisting that marriage is between a man and a woman, but neither precluded public debate and paid advertising services advancing the gay marriage cause, nor did anyone assert the state could pass laws preventing the dissemination of the message.  Why not?  If speech is indeed subservient to the public market and the public market did not support gay marriage at that time, why can’t the state simply force you to say what you do not believe, or at a minimum force gay people to support traditional marriage?

These questions answer themselves:  Free speech and the First Amendment are the primary lens through which we view content.  Generally speaking, other concerns such as public accommodation are subservient to the marketplace of ideas and the bedrock principle that the state cannot – under almost any conceivable circumstances – force you to say what you do not believe.  We can certainly criticize 303 Creative for their decision, but compelling them to create content that they do not support is beyond the power of the state in the United States of America at least.  Justice Neil Gorsuch, writing for the majority, makes this distinction plain.  The bedrock principle is not freedom of religion, but speech.  Whether or not 303 Creative has arrived at their opinion on gay marriage because of religion is irrelevant.  “It is difficult to read the dissent and conclude we are looking at the same case.” Justice Gorsuch wrote.  “Much of it focuses on the evolution of public accommodations laws, post, at 7–13, and the strides gay Americans have made towards securing equal justice under law, post, at 14–17. And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”  Justice Gorsuch, rightly in my opinion, devotes time to the notion of compelled speech – and how the government might ultimately abuse it.  “Never mind, too, that it is the dissent that would have this Court do something truly novel by allowing a government to coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own.”

Ironically, progressives are openly arguing in favor of the state being able to eliminate ideas that differ from its own in the wake of another recent ruling at a lower court that barred the Biden Administration from collaborating with social media companies to suppress speech.  Here, they are making the argument that content is king and regardless of who posts it, social media companies have the ability to remove it based on input from the government, but if the government can do that, why not simply compel the speech in the first place as Colorado had attempted to do before the Supreme Court ruling?  Thankfully, at least as of today, “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” as Justice Gorsuch wrote. “Colorado cannot deny that promise consistent with the First Amendment…First Amendment extends to all persons engaged in expressive conduct.”  To be sure, this richness and complexity might well result in instances of bias or discrimination, and no right exists entirely in a vacuum, but the alternative envisioned by Justice Sotomayor and other progressives is, at least in my mind, far more frightening, proof of my earlier proposition that they are more than willing to compel you into a progressive future.