Bench Memos

Law & the Courts

Bonkers Tenth Circuit Ruling Against Free Speech

In a stunning ruling yesterday in 303 Creative LLC v. Elenis, a divided panel of the Tenth Circuit held that Colorado’s Anti-Discrimination Act “permissibly compels” a graphic and website design company to offer wedding websites that “celebrate same-sex marriages” if it is going to offer wedding websites that celebrate opposite-sex marriages. Judge Mary Beck Briscoe wrote the majority opinion, which Judge Michael Murphy joined. Chief Judge Timothy Tymkovich dissented.

I present below Briscoe’s actual reasoning on the Free Speech claim (underlining added; some citations omitted). Everything is fine on points 1 to 6. Indeed, those points seem to be setting up a ruling in favor of the website design company. But Briscoe goes completely off the rails on points 8 and 9.

Briscoe:

1. Colorado’s Anti-Discrimination Act defines a public accommodation as “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” Under CADA’s Accommodation Clause, a public accommodation may not “directly or indirectly . . . refuse . . . to an individual or a group, because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . . .”

2. “It is a ‘fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.’”

3. “Appellants’ creation of wedding websites is pure speech. The websites Appellants intend to offer ‘celebrate and promote the couple’s wedding and unique love story’ by combining custom text, graphics, and other media. The websites consequently express approval and celebration of the couple’s marriage, which is itself often a particularly expressive event.”

4. The Accommodation Clause “force[s] [Appellants] to create websites—and thus, speech—that they would otherwise refuse.”

5. “Because the Accommodation Clause compels speech in this case, it also works as a content-based restriction. Appellants cannot create websites celebrating opposite-sex marriages, unless they also agree to serve customers who request websites celebrating same-sex marriages.”

6. “Whether viewed as compelling speech or as a content-based restriction, the Accommodation Clause must satisfy strict scrutiny—i.e., Colorado must show a compelling interest, and the Accommodation Clause must be narrowly tailored to satisfy that interest.”

7. “Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.”

8. Although the Accommodation Clause “is not narrowly tailored to preventing dignitary harms,” it is narrowly tailored to Colorado’s interest in ensuring ‘equal access to publicly available goods and services.’”

9. “Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere…. For the same reason that Appellants’ custom and unique services are speech, those services are also inherently not fungible. To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services.” (Italics in original.)

I cannot fathom Briscoe’s logic in point 9. For Briscoe, it doesn’t matter that there are lots of other website design companies that can provide custom wedding websites that celebrate same-sex marriages. Somehow the very fact that Appellants provide custom websites means that they are providing a service that is “unique” for purposes of the “narrow tailoring” inquiry.

In case you think I’m misunderstanding Briscoe, here is what she sees in the very next paragraph after point 9 (in the context of addressing an argument that her analysis would chill commerce by discouraging businesses from entering the market):

This case does not present a competitive market. Rather, due to the unique nature of Appellants’ services, this case is more similar to a monopoly. The product at issue is not merely “custom-made wedding websites,” but rather “custom-made wedding websites of the same quality and nature as those made by Appellants.” In that market, only Appellants exist.

I think that this is the most stupid analysis of competition that I have ever read. In case you wonder whether there might actually be something extraordinary about Appellants’ custom wedding websites: They haven’t even started offering them yet, and there is nothing in Briscoe’s opinion to indicate that they would not face lots of competition.

More broadly, it is difficult to imagine a ruling more hostile to free speech. Briscoe understands the Colorado law to operate as a “content-based restriction” that “compels” the owner of a small website design company to engage in “pure speech” that expresses “approval and celebration” of something that she opposes. But the very fact that the owner would be customizing her speech for websites celebrating opposite-sex marriages somehow means that services comparable to hers can’t be obtained from other providers.

Briscoe’s ruling would have sweeping consequences. Tymkovich in dissent observes that Briscoe’s ruling, “[t]aken to its logical end, [would mean that] the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace.’” In response, Briscoe offers only the quibble that “our holding does not address how CADA might apply to non-commercial activity (such as commissioning a mural for some charitable purpose).” Tymkovich sensibly replies that Briscoe’s quibble

is surely cold comfort for the vast majority of artists, who make a living by selling their work. Artists should not have to choose to either disavow their beliefs or charitably create in order to have control over their own messages.

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