The Supreme Court’s Chance to Uphold Artistic Freedom

N o one likes to compete when the deck is stacked against them. It’s why we intuitively cheer those who stand up to rigged systems. Think Squid Game, The Hunger Games, or The Running Man. The idea runs throughout our literature and pop culture.

The same intuition applies to speech. That’s why we have the First Amendment. In theory, it requires the government to stay neutral in some arenas. That doesn’t always mean that we’re entitled to equal resources or equal results. CNN can reach a larger audience than you or I. But at the very least, it means the government can’t use its coercive power to silence your view in favor of another.

As the U.S. Supreme Court said 45 years ago in Buckley v. Valeo, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

That’s what makes the actions of Colorado officials so problematic. They’ve used state power to rig its system against certain views. Take the case of Lorie Smith, a Colorado-based website designer and owner of 303 Creative. She is required under a state law to design and publish websites celebrating same-sex weddings, simply because she also wants to create websites that celebrate marriage between a man and a woman. That mandate in turn forces Lorie to create websites celebrating same-sex marriage even though that violates her sincerely held religious belief — namely, that marriage is lifelong union between one man and one woman. It’s the same law that Colorado used to punish cake designer Jack Phillips. So Lorie knew how this story would play out and decided to challenge the law in court.

Some may not object to Colorado’s law, because they dislike Lorie’s views. But let’s be clear: Lorie doesn’t discriminate against anyone. Colorado conceded in court that Lorie serves her clients regardless of their sexual orientation, including LGBT clients. She just won’t design websites promoting certain messages, no matter who asks.

Meanwhile, Colorado allows other businesses to do what Lorie cannot. Colorado allows LGBT bakers to decline to create cakes with messages criticizing same-sex marriage and allows religious web designers to avoid creating websites saying, “God is dead.” Apparently, the only views that Colorado forces artists to promote are those conveying certain views about sexual ethics objected to by religious speakers.

That should make for an easy First Amendment case. And when it went before the U.S. Court of Appeals for the 10th Circuit, the court mostly agreed with Lorie. It affirmed that her websites are protected under the First Amendment, that she doesn’t discriminate against anyone, that many other web designers will create websites celebrating same-sex weddings, that Colorado’s law forces Lorie to speak, that the law’s “very purpose” is to target certain content, and that the law risks “excising certain ideas or viewpoints from the public dialogue.”

But the court still ruled against Lorie. It reasoned that Colorado could override her First Amendment rights and force her to speak certain views because her one-person design studio had created a “monopoly.” Since no one else creates websites exactly like Lorie’s — with her unique designs and artistry — officials could compel Lorie to publish websites that contradict her religious beliefs.

If that sounds like a stretch, it is. There are more than 77,000 web-design firms in the U.S. Saying that Lorie has a monopoly over her website designs is like saying that Coca-Cola has a monopoly over Coke or Taylor Swift has a monopoly over her own voice. It makes no sense.

Contrast that with how courts treat monopoly rationales elsewhere. When Florida and Texas attempted to regulate the conditions under which companies like Google, Apple, and Twitter could de-platform people from social media, on the basis that they were monopolies, courts in both states halted those laws. Why? Because those courts said these companies had a First Amendment right not to publish content they dislike on their websites.

So let’s recap: Billion-dollar companies supposedly have a First Amendment right to de-platform other people’s expression when it violates those companies’ preferred views. But the government can override the First Amendment rights of a single web designer, forcing her to create and then promote her own content that violates her deeply held religious beliefs. That deck is stacked. And not in favor of everyday Americans.

Thankfully, the last match of this game hasn’t been played. Through her attorneys with Alliance Defending Freedom, Lorie has asked the U.S. Supreme Court to take her case. And the Supreme Court is scheduled to consider her request for the first time at its January 7 conference, today. Publishers, broadcasters, congressmen, states, economists, legal scholars, and religious groups have all weighed in and supported Lorie’s request. They know that if the government can label Lorie’s expression a monopoly and compel her to promote views she disagrees with, it can do the same for any artist, speaker, or citizen.

Lorie’s views today. Your views tomorrow.

In that sense, we all have a lot riding on Lorie’s case, and it should be easy to root for her. Let’s hope, then, that the Supreme Court puts an end to Colorado’s discriminatory system — and affirms fundamental tenets of its free-speech jurisprudence that protect everyone.