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Speech or conduct? Effects of website designer ruling uncertain

It’s too early to assess the ramifications of the U.S. Supreme Court’s recent ruling that a Christian graphic artist who wants to design wedding websites can refuse to work with same-sex couples, according to some legal experts.

“The boundaries of the Supreme Court’s decision will be worked over time,” said Jill Hasday, the University of Minnesota Law School’s Centennial Professor in Law and Distinguished McKnight University Professor. “I don’t think anyone knows for sure how far reaching this will be, including, perhaps, the Supreme Court.”

The decision came down in late June, seven years after web designer Lorie Smith filed a pre-enforcement challenge against Colorado’s public accommodations law, claiming it could compel her to speak in a way that did not align with her beliefs.

In 303 Creative LLC et al. v Elenis et al., Smith asserted that as a wedding website designer, she would be using her own words to craft a couple’s story on the website, and if the couple were same-sex, writing their story could compel her to state that she supports same-sex marriage when she does not.

In a 6-3 decision, the court agreed with Smith. Justice Neil Gorsuch wrote in the majority opinion that the use of Smith’s own words and artwork to create the website classifies her product as free speech, and therefore should not be infringed upon.

The court’s decision sparked anger and confusion from LGBTQ activists and legal experts, including the American Civil Liberties Union, which called the decision “fundamentally misguided.”

The court’s dissenting opinion, written by Justice Sonia Sotomayor, argued the Supreme Court has long said businesses cannot discriminate against consumers.

“The dissent says this isn’t speech; this is conduct, this is commercial activity,” Hasday, an expert in constitutional, anti-discrimination, and family law, explained. “She has chosen to sell her wares to the general public.”

Hasday added the dissent cited Runyun v McCrary as another example of the court’s longstanding opinion that private operations have an obligation to provide equal services to people.

In the Runyun case, the court stated students of color should be allowed to attend a private school, which had previously rejected the students based on race, claiming their freedom of religion as the reason.

Yet, the 303 Creative decision also appears to fall in line with free speech precedents set by the court, according to University of St. Thomas School of Law professor and Distinguished University Chair Michael Paulsen, whose expertise areas include free speech and constitutional law.

“As it stands, the decision in 303 Creative breaks no new ground, but soundly applied the court’s sound precedents to a somewhat new situation,” Paulsen said in an email.

Paulsen added that had the decision been the opposite, one could argue the government could force companies to produce products it disagrees with — regardless of the messaging.

“If government can compel a private sector website designer to create content it finds objectionable, it could require private companies to manufacture racist speech, offensive speech, political speech, hateful speech, anti-religious speech, or other speech the private company and its owners abhor,” Paulsen wrote. “What the government can do in one direction, to one individual or business, it can do in any direction to any number of others.”

When considering these possibilities, Hasday and University of Minnesota Silha Professor of Media Ethics and Law Jane Kirtley said this decision may provide countless “what ifs.”

“I see this case as opening up numerous cans of worms in whether we’re talking about truly expressive speech,” Kirtley said.

Kirtley is also the director of the Silha Center for the Study of Media Ethics and Law.

University of St. Thomas School of Law’s James L. Oberstar Professor of Law and Public Policy Tom Berg cited the case’s pre-enforcement nature — a method Berg explained is used by advocates on all sides of the law — as creating hypotheticals rather than concrete parameters.

Smith claimed to have received a request for services from a same-sex couple after filing the case as a pre-enforcement challenge in 2016. This request was mentioned by Smith’s attorneys during proceedings.

NPR reported in July that the person Smith alleges made this request denies doing so and has been married to a woman for more than 15 years.

No further explanation has been released at the time of this report.

Regardless, what this case means for the future of free speech in the context of work is still uncertain.

“We don’t know exactly how expressive Laurie Smith’s work would have been because the court did not have a full record,” Berg explained. “So, you have to go by the stipulations, which are relatively short and more abstract than a full litigation record. And that makes it harder to say exactly what this case suggests.”

Berg, Kirtley, and Hasday all provided examples of hypothetical situations that could be complicated by this ruling.

Hasday pondered the rights of a photographer who refuses to take headshots of a woman, claiming that the customization of these headshots means they are being compelled to support women working out of the home, if that’s something with which they disagree.

Considering photographers as well, Berg questioned what a rural same-sex couple would do if the only photographer willing to work with them is hours away from their location.

Kirtley provided similar examples, explaining that a napkin service provider must sell napkins to a restaurant owned by people with whom they disagree, but is creating a sign for the restaurant a form of speech?

Kirtley also speculated if the court’s decision could eventually venture into various non-creative sectors. She provided an example of a medical provider denying gender affirming care to someone who is transgender on the basis that doing so infringes on the provider’s beliefs.

“I see it as a complicated ruling… It’s saying the government can’t tell you what to say. That is certainly consistent with decades of precedent,” Kirtley said, later adding, “I think the problem is that… it’s running up against another compelling interest: that people in protected groups are not subject to discrimination when they are interacting with people that are providing public accommodation.”

As a legal and first amendment expert, Kirtley concluded by saying it’s difficult to simply agree or disagree with the court’s decision.

“There are obviously consequences that flow from the interpretation of the first amendment,” Kirtley said, later adding, “It’s not just a binary decision. There’s no question that there are significant consequences to this ruling.”