In December, the Supreme Court will hear the latest case to come from Colorado’s enforcement of its “public accommodations” law to creative professionals who object to messages celebrating same sex marriage. But the case will affect the rights of many more people than Christian bakers and florists. Among others, the Court’s decision in 303 Creative LLC v. Elenis will also impact the First Amendment freedoms of social media platforms – demonstrating once again that our free speech rights are bound up together, whether we like it or not.
The First Amendment prohibits government from compelling speech. Public officials can’t force students to recite the Pledge of Allegiance in a public school classroom or even require you to promote a state motto on your license plate. In 303 Creative, both sides agree that its owner, Lorie Smith, serves “all people regardless of classifications such as race, creed, sexual orientation, and gender.” She designs websites for LGBTQ customers. But she declines to express messages with which she disagrees, including custom website content celebrating a same sex marriage. Unlike prior similar cases to reach the Court, there is no dispute that Colorado is compelling Smith to speak. As Americans for Prosperity Foundation has previously to the Court, Colorado is violating the First Amendment.
There is a fundamental, constitutional, distinction between refusing to serve someone because of who they are – which is not just illegal but reprehensible – versus declining to say what you do not believe.
The issues in 303 Creative are important enough on their own. But the resolution of them will also impact the First Amendment rights of others. Two state laws, one from Florida (Moody v NetChoice) and one from Texas (NetChoice v Paxton), likewise prohibit social media companies from “discriminating” against speech on the basis of its viewpoint. The laws are aimed at the concern that large social media platforms are biased against conservative speakers. The Eleventh Circuit held that the Florida law violates the First Amendment. But the Fifth Circuit recently upheld the Texas law – creating a legal conflict the Supreme Court is likely to have to resolve.
One or more of these cases should make their way to the Supreme Court in the next year. But before that, the Court will hear 303 Creative, and the law made there will impact the First Amendment rights of everyone, including social media platforms. If Colorado can give definitive weight to the public’s interest in forcing Lorie Smith to speak, if Colorado can succeed in treating Lorie’s content moderation of her expression as mere “discriminatory” conduct, and if Colorado succeeds in weakening the compelled speech precedents on which Facebook and Twitter also rely, the ramifications of the decision would impact Silicon Valley as much as Colorado.
The speaker vs the public: In 303 Creative, Colorado is trying to dictate the speech of an independent web designer on her custom sites. And it makes this argument despite the availability of other providers to promote the chosen message. The 10th Circuit in 303 Creative held that Colorado can force Lorie Smith to provide the services because only Lorie Smith makes websites like Lorie Smith. She has a “monopoly” on her own unique creative talents that the rest of the public has a right to access.
Texas and Florida, likewise, are employing a novel theory of the related “common carrier” doctrine to dictate what content large social media platforms must facilitate. NetChoice, the trade association for technology companies, argues that social media platforms have their own First Amendment right to editorial discretion – so, for example, they can’t be compelled to post “lawful but awful” speech like praise for past acts of domestic terrorism. But the states contend that these private platforms must yield to private speakers because they are “central public forums for public debate.” How the Court weighs the rights of the Colorado public versus Lorie Smith’s free speech rights may impact the arguments available to social media companies.
Labeling the speech as conduct: Another similarity in the cases is the states’ attempt to label the challengers’ speech as something else in order to avoid the application of the First Amendment. Texas, and the 5th Circuit, try to define away the social media platforms’ editorial discretion about what to publish or facilitate by repeatedly labeling it “censorship.” In the 5th Circuit’s retelling, social media companies aren’t engaging in their own protected speech when deciding what speech can be expressed on their platform, they’re just censoring others. But Colorado plays the same game when it labels Lorie Smith’s choice of which messages to promote as “discrimination.” Whether this labeling exercise, treating speech as conduct, works for Colorado may have significant bearing on the Texas and Florida laws.
The applicable caselaw: The differences in the cases are obvious. Lorie Smith is not Twitter. She builds individual websites for clients. Twitter and Facebook are global corporations. A result in one case is not dispositive of the other.
But the same First Amendment principles apply in both cases. That’s why the briefs and lower court opinions in the cases focus on the application of the same Supreme Court compelled speech precedents. A major legal question in all these cases is just how to apply the Supreme Court’s decisions in Hurley v Irish-American Gay Lesbian and Bisexual Group of Boston (where the Supreme Court unanimously held the First Amendment protected the right of a parade organizer to exclude an LGBT group from marching behind their banner), and Miami Herald v Tornillo (where the Court held that a state law requiring a newspaper to post a reply to an editorial violated the First Amendment). The way the Supreme Court applies those cases in 303 Creative will directly impact the results in the social media cases.
Existing Supreme Court precedents have long established the core principle that private entities disseminating speech can exercise editorial discretion – whether they’re a parade in Boston or a newspaper in Miami. They have a constitutional right to decide what speech they facilitate. The First Amendment restrains the government, not private parties, and it does not permit the government to compel speakers to speak messages the government wants spoken.
The Supreme Court will have its first chance to reaffirm these principles in 303 Creative after it hears the case in December. And as the social media cases work their way to the Supreme Court, with a somewhat different alignment of political interests, that decision will reverberate well beyond Colorado to Texas, Florida and beyond.
Facebook, Twitter, and other social media platforms chose not to file a brief in 303 Creative and it’s not hard to guess why. But when the case is argued in December you can be certain that counsel for the social media companies will be watching the case carefully and hoping to cite it to defend their own First Amendment rights. I expect that when the Court decides 303 Creative next year it will be a resounding victory for Lorie Smith, for The First Amendment, and for speakers large and small.
Casey Mattox is vice president for legal and judicial strategy at Americans for Prosperity.
