Bench Memos

Law & the Courts

Monopolizing the Marketplace of Ideas

Baker Jack Phillips, decorates a cake in his Masterpiece Cakeshop in Lakewood, Colo., September 21, 2017. (Rick Wilking/Reuters)

In case you hadn’t noticed, views on free speech are changing. In the past, we defended our neighbor’s right to express views we disliked. Today, the American Booksellers Association apologizes for the “violent” act of promoting controversial books in its newsletter. In the past, we valued tolerance. Today, some cultural elites consider dissent from certain ideologies to be indefensible.

These changes have legal consequences. Those seeking to control how we think don’t stop with our jobs or social-media accounts. They enlist state power to get their way. Jack Phillips and Lorie Smith know this firsthand.

Jack is the Lakewood cake designer who declined to create a custom cake celebrating a same-sex wedding. The state of Colorado sued him. He won at the U.S. Supreme Court. After he declined a lawyer’s request to create a pink-and-blue cake celebrating a gender transition, the state sued him again. He won that, too. Now, that activist lawyer is suing Jack for the same thing.

As Lorie Smith watched Jack’s plight, she realized how things would play out. Lorie is a Denver-area website designer who started her own design business to have greater artistic freedom to choose her projects. But the same law that forced Jack to create custom cakes celebrating same-sex marriage also requires Lorie to create custom wedding websites celebrating same-sex marriage. Knowing this would violate her conscience, she asked a court to protect her First Amendment right to choose which messages she promotes.

Unfortunately, a federal appellate court ruled against her. Why? Not because she discriminates. She doesn’t. The state conceded this. And the court agreed, acknowledging that Lorie is “willing to work with all people regardless of sexual orientation.” The court also agreed that Lorie’s websites consist of speech covered by the First Amendment and that the state is forcing her to promote certain views. The end result? Colorado’s law creates a “substantial risk of excising certain ideas or viewpoints from the public dialogue.” Those ideas are Lorie’s religious ideas defining marriage to be between a man and a woman. “Eliminating such ideas is [the law’s] very purpose,” said the court.

Despite all this, the court said the state can override Lorie’s First Amendment rights and compel her to promote same-sex marriage online because those wanting to promote that view cannot obtain “services of the same quality and nature as those that” Lorie offers. Lorie somehow managed to create a “monopoly” through her one-person studio.

So let’s get this straight. Billion-dollar tech companies delete content on their websites and de-platform people from those sites every day. But a solo religious artist running her studio has become such a monopoly that the state can force her to design and publish websites promoting views that violate her convictions?

Now let’s get real. This isn’t about monopolies controlling access to services in the marketplace. This is about the government excluding dissenters from the marketplace of ideas. Even the court agreed that consumers “may be able to obtain wedding-website design services from other businesses.” There are, after all, over 77,000 web-design firms in the U.S. alone.

But apparently that’s not good enough. Mimicking certain cultural trends, Colorado officials disdain certain views on marriage, want to eradicate them, and demand that those like Lorie and Jack — religious artists and small-business owners — profess different views or lose their livelihoods. And this should be alarming whether you agree with Lorie’s and Jack’s views on marriage or not. When the state can punish speakers based on ideological disagreements and force people to speak messages they disagree with, everyone loses. That’s because the implications of this case transcend marriage. If not today, then tomorrow, when the cultural winds shift again on a different topic.

Thankfully, this court decision won’t be the last word. With the help of her Alliance Defending Freedom attorneys, Lorie has asked the U.S. Supreme Court to step in and protect the freedom of all Americans. Do we live in a free marketplace of ideas? Or do state officials have a monopoly to control the views we do and don’t express? The stakes are too great for a wrong answer.

Jonathan Scruggs, senior counsel and director of the Center for Conscience Initiatives at Alliance Defending Freedom (@Alliance Defends), represents Lorie Smith and her web-design business, 303 Creative.


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