SCOTUS takes on a controversial case with free speech implications.
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
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Today's read: 13 minutes.
Quick hits.
- Sen. Raphael Warnock (D) defeated challenger Herschel Walker (R) in Georgia's Senate runoff 51.4% to 48.6%, giving Democrats a 51-49 majority in the Senate. (The results)
- Rep. Andy Biggs (R-AZ) announced his plans to run against House Minority Leader Kevin McCarthy (R-CA) for Speaker of the House. (The challenge)
- 25 people were arrested in Germany on suspicion of planning an armed coup to overthrow the government. Thousands of officers carried out raids across the country. (The charges)
- Argentina's Vice President Cristina Fernández was found guilty of embezzlement and fraud totaling more than $1 billion. She was sentenced to six years in prison and barred from serving in public office. (The sentence)
- A jury found the Trump Organization guilty of tax fraud, and it may face up to $1.6 million in fines. Neither former President Trump nor his family members were charged. (The fines)
- BONUS: Ukraine's President Volodymyr Zelensky was named TIME's Person of the Year. (The honors)
Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.
Today's topic.
303 Creative LLC v. Elenis. On Monday, the Supreme Court heard oral arguments in the case of Lorie Smith, a website designer who wants to expand her business to wedding websites, but only create those websites for heterosexual couples. Specifically, Smith wants to post a message on her wedding website with a note that she will not create websites for same-sex marriages “or any other marriage that is not between one man and one woman." She is represented by lawyers from Alliance Defending Freedom (ADF).
Smith, a devout Christian, is challenging a Colorado law that prohibits most businesses from discriminating against LGBTQ customers, saying a requirement to create a website for a same-sex wedding would violate her right to freedom of speech. The law at the center of the case is Colorado's Anti Discrimination Act (CADA), also known as a public accommodation law. It requires that businesses that serve the public serve everyone. Unique to her case is that she is challenging the law preemptively, before building out or selling any custom wedding websites.
In oral arguments, Colorado's Solicitor General Eric Olson said the law targets discriminatory sales, not a speaker's message, arguing that a store can decide to sell only Jewish-themed items but it cannot refuse to sell those items to Muslim or Christian customers. He argued that exempting Smith from this law on the grounds of her sincere religious beliefs would open the door for genuine discrimination against LGBTQ customers.
Smith's lawyers, meanwhile, say she “decides what to create based on the message, not who requests it.” Smith says she is asking the court to uphold existing precedent, including a 1995 decision in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group, in which the court ruled that Massachusetts could not require the private organizers of Boston's St. Patrick's Day parade to allow an LGTBQ group to march in the parade.
During oral arguments, Justice Sonia Sotomayor made the case that to rule in Smith's favor would mark the first time the Court ever allowed a commercial business to refuse a customer based on their race, sex, religion or sexual orientation. Chief Justice John Roberts countered the court has never approved efforts to compel speech that is contrary to a speaker's belief. The five other conservative justices on the court appeared to agree with him, signaling a likely ruling in favor of Smith.
Key to the case is defining the act of creating a wedding website and whether it constitutes speech. The Tenth Circuit court described Smith's hypothetical as "pure speech" but still ruled against her, saying she had "monopolistic" control over her specific designs, which sent the case to the Supreme Court. Previous cases challenging the Colorado law, like Masterpiece Cakeshop v. Colorado Civil Rights Commission, were ruled on narrow grounds that did not address the tensions between First Amendment protections and Colorado's anti-discrimination laws.
In oral arguments, the liberal justices seemed to question whether creating a wedding website is an act of speech at all. However, Smith makes the case that creating such a website is an explicit expression of speech, and her argument is that the government cannot force her to create a website she finds objectionable.
Oddly, in its defense of the law, the state seems to agree with her. In its brief, the state acknowledges that a web design company gets “to decide what design services to offer and whether to communicate its vision of marriage through biblical quotes on its wedding websites." Instead, the state argues that once Smith creates a specific web design for the public, she must provide the same service to people of all sexual orientations.
Today, we're going to take a look at some arguments from the right and left, then my take.
What the right is saying.
- Many on the right classify Smith's website building as an act of speech, and say the court should side with her.
- Some say the state is using incongruous hypotheticals to frame their arguments.
- Others say this is not an area where the government should be able to compel someone to create something.
In Newsweek, Ilya Shapiro said the court should reaffirm all Americans' right to choose what to say.
"Fundamentally, 303 Creative is about protecting the constitutional right to free expression while allowing the government to generally ensure equal access to commercial goods and services," Shapiro said. "Although 'gay couples cannot be treated as social outcasts or as inferior in dignity and worth,' as the Court observed in Masterpiece Cakeshop, the First Amendment's protection of freedom of speech must also include the freedom not to speak. A freelance writer cannot be punished for refusing to write press releases for the Church of Scientology, even if he is willing to work for other religious groups. A musician cannot be punished for refusing to play at Republican Party rallies, even if he will play at other political events—and even if the jurisdiction statutorily bans discrimination based on political affiliation.
"Likewise, a photographer or a wedding singer should not be punished for refusing to take photographs celebrating a same-sex wedding, or for refusing to sing at such a wedding, regardless of what any statute says. Indeed, the Court has generally recognized that the First Amendment protects the right to speak, or to refrain from speaking, even when the government cites its compelling interest in forbidding discrimination," he wrote. "Fortunately, 303 Creative doesn't call on the Court to define the line between speech and conduct with precision, as there's no question that the underlying conduct here involves compelled speech. Because it's so easy to appreciate how the case implicates speech rights—as even the 10th Circuit did—the Court has a prime opportunity to reiterate the basic holding of cases like Hurley and Wooley v. Maynard (1977), where it held that a motorist could decline to carry New Hampshire's 'Live Free or Die' license plate motto."
In National Review, Rachel Morrison said same-sex wedding websites are fundamentally different than a baker refusing to serve a gay customer.
"The Tenth Circuit Court below acknowledged that Lorie’s wedding websites are 'unique services' and 'pure speech,' but under CADA she is 'forced to create custom websites [she] otherwise would not.' The court found Lorie was 'willing to work with all people regardless of sexual orientation' and was 'generally willing to create graphics or websites for [LGBT] customers' but would not design websites celebrating same-sex marriages for anyone. The same is true for all her custom websites — Lorie decides whether to create a design based on the message requested, not the person making the request," Morrison wrote. "Nevertheless, Colorado falsely frames the case as merely requiring a business that opens its doors to the public to serve all customers and its law as protecting customers’ equal dignity and equal access to goods and services.
"To support its position, Colorado provides the following analogy: 'The Act does not, as the Company claims, compel a Hindu calligrapher to write flyers proclaiming, Jesus is Lord. It requires only that if the calligrapher chooses to write such a flyer, they sell it to Christian and Hindu customers alike.' The underlying premise of this analogy is that the custom wedding websites for same-sex and different-sex couples are the same product. They are not," Morrison says. "As a group of website and graphic designers argued in their 303 Creative amicus brief filed in support of neither party, 'A ‘custom’ product is materially different than a ‘mass-produced’ product.' Aside from wedding websites having, at a minimum, different names, themes, colors, text, dates, and pictures, male-female and same-sex wedding websites are different because a wedding between those of each sex is inherently different from a wedding between those of the same sex, and the websites convey a different message and point of view about marriage."
In The New York Times, the priest and writer Tish Harrison Warren wrote about respecting the religious views of others in order to promote a pluralistic society.
"Of course, one can think that these scriptures and the historic beliefs of Christianity are wrong, that they have been understood incorrectly, that they need to be reinterpreted in light of modern insights about sexual orientation and same-sex relationships, or that they are simply antiquated and irrelevant," Warren wrote. "Those are important arguments currently being had by essentially every major religious group on earth. Beyond that, religious conservatives could make a solid case that people have a moral duty to offer hospitality to those who hold different beliefs and should therefore bake the cake or make the website. But a commitment to religious liberty means that the government should not choose a side in these intrafaith debates.
"One doesn’t have to agree with a particular religious belief in order to affirm that law-abiding people have a right to live according to their conscience," Warren said. "And there is a vital distinction to be made between general discrimination against a group and declining to participate in an act one finds immoral. Ms. Smith serves gay customers. She would not refuse to build a website for someone simply because the person is gay. She specifically does not want her services to be used as part of a celebration of a same-sex wedding. We make similar allowances for other ideological differences. A pro-choice artist should not be compelled to make a logo for a pro-life rally. A progressive party planner should not be required to take on a Trump PAC as a client. A gay web designer ought not be forced to create a site promoting a conservative church."
What the left is saying.
- Many on the left argue a ruling in Smith's favor would create a slew of openings for legal discrimination.
- Some say the case should be dismissed because it is a hypothetical without any real facts or case to explore.
- Others argue this is the beginning of the Supreme Court's assault on LGBTQ rights.
In Slate, Mark Joseph Stern said "the true origin story of 303 Creative is much less sympathetic than the lawyer-crafted narrative."
"Colorado law does not compel Smith to create a wedding website for a same-sex couple, or for anyone else. It only insists that once Smith has designed a wedding website, she must allow same-sex couples to purchase that product," Stern wrote. "In essence, Colorado says she must sell her website template to all customers, regardless of their identity. She need not create a new template or 'speak' in support of any marriage. At most, if she makes a wedding website for Henry and Fiona, she must sell the same template to Henry and Frank. As Colorado Solicitor General Eric Olson acknowledged, she could even make a template that (for some reason) condemned same-sex marriage. This speech is permitted. Colorado targets only the conduct of refusing to sell that product to gay people.
"A lot of these questions ran into the fundamental problem with this case: There is no live controversy, and therefore no facts against which the justices could test their legal theories," Stern says. "It would be supremely helpful to know, for instance, how Smith would have responded to a request from a same-sex couple. There is a legal difference between saying no 'because you’re gay' (which discriminates on the basis of identity) and saying no 'because you’re celebrating a gay wedding' (which, according to ADF, is discrimination on the basis of message). But because the central clash in 303 Creative is purely speculative, no such facts exist. So the justices indulged in increasingly outlandish hypotheticals that drew them further and further from the case at hand."
In Vox, Ian Millhiser said the case should be dismissed because it is still a hypothetical.
"Suppose an author writes a book called Lesbians Are Immoral. The First Amendment protects nearly all forms of speech, including hate speech, so this book is protected by the Constitution and the government may not pass a law seeking to alter its content or banning its sale," Millhiser says. "Now suppose that Brenda, who is a lesbian, goes to a Colorado bookstore and attempts to purchase a copy of Lesbians Are Immoral. If the bookstore refuses to sell the book to Brenda because of her sexual orientation, that would violate Colorado’s civil rights law, and the bookstore would not be protected by the First Amendment.The same rule applies to any other form of expression — whether it is a website, a painting, or a cake with a pro-LGBTQ message written on it in icing.
"The government cannot force Smith to design any website she finds objectionable. But it can require her to sell the same web design to all customers, regardless of their sexual orientation. Which brings us to the reason the 303 Creative case should be dismissed: Lorie Smith has never actually refused to design a wedding website for a customer who wishes to buy one from her," he said. "As Colorado says in its brief, Smith’s company 'has yet to build any custom wedding website, serve a customer, refuse work for a same-sex wedding, or have the [state’s civil rights law] enforced against it in any way.' ... Federal courts are not in the business of deciding hypothetical cases... If, at some point in the future, a customer asks Smith to design a particular website, she refuses, and then Colorado attempts to sanction her for that refusal, then she may very well have a valid First Amendment claim. But it is impossible for the Supreme Court to determine whether this hypothetical chain of events might play out in the future."
In The Nation, Elie Mystal said the Supreme Court has "officially launched" its war on LGBTQ people.
"As a matter of theory, Smith’s case presents an interesting problem. First Amendment protections absolutely prevent the government from 'compelling' speech. A business owner can be forced to pay taxes, but they can’t be forced to put up a sign that reads 'Taxes are good and appropriate,' just as surely as I cannot be compelled to write 'Donald Trump can read and has totally normal-sized hands.'... But all of the tortured hypotheticals in the world couldn’t account for the fact that the free speech analysis doesn’t stop where ADF and the conservatives want it to. Smith argues, in essence, that she’s allowed to engage in content-based discrimination: She can’t be compelled to say ‘gay marriages are cool.' ... She doesn’t simply want to be able to discriminate through the content she creates; she also wants to be able to discriminate against LGBTQ people.
"She wants to be able to deny gay people the ability to frequent her business. That’s discrimination based not on content but on an immutable characteristic of some of her potential customers," Mystal writes. "The long history of public accommodations laws says that business owners cannot do that. To put it plainly, a diner owner can absolutely tell me 'I don’t like n******' when serving me lunch, but he still has to serve me lunch. He doesn’t have a free-speech objection to providing me a service that I am willing to pay for, no matter how deeply he hates me. Smith and the Christian fundamentalists want people to believe that the creation of a marriage website is a speech act, but even if it is (and I’m being incredibly generous by calling 'Wedding HTML for Dummies' a 'speech act'), denying service to a customer based on their immutable characteristics is not protected speech. It’s just hate."
My take.
Reminder: "My take" is a section where I give myself space to share my own personal opinion. It is meant to be one perspective amid many others. If you have feedback, criticism, or compliments, you can reply to this email and write in. If you're a paying subscriber, you can also leave a comment.
Is it possible to agree with everyone?
I always encourage Tangle readers to consume the entire newsletter top to bottom, but today especially, if you just skipped to "my take," I encourage you to go back and read the arguments presented above. They are fascinating and compelling — even more so than usual. Which illustrates the complexity of this case.
When I first read the outlines of this case, my knee-jerk reaction was sympathy toward the state — mainly because I have LGBTQ friends and family whom I love, many of whom have shared with me their personal stories of being discriminated against. As I started reading the arguments, though, my rational analysis was sympathy for Lorie Smith. The idea of the state compelling her to create wedding websites promoting same-sex marriage against her wishes is one of the most troubling brands of government intrusion I can imagine. And then, as I kept reading, I realized that's not exactly what’s happening here.
If this case were real, and not a hypothetical, and the details were presented precisely as Smith and her lawyers define them, then I would actually side with them. Reading their arguments, and the arguments above, it looks open and shut to me. Of course the government cannot compel someone to do work they don't want to. Of course the government cannot compel a religious person to endorse same-sex marriage. Of course Smith has the right to create the kinds of websites she wants to and decline to create the websites she doesn't. As a free speech enthusiast, a writer, and a business owner, all of these arguments hit home for me. Iyla Shapiro’s examples, like how a musician cannot be punished for refusing to play at Republican Party rallies, should resonate for those on the left.
For instance, if — as Smith is creating websites for dozens of different services (political campaigns, dog breeders, contractors, etc.), she says that she won't create wedding websites for same-sex marriages, I think that's fine. She is not refusing to serve same-sex couples or gay customers, and I'm not sure why any gay couple would want her to design their wedding website anyway.
However, I see how this seems like saying “she wouldn’t be denying gay people for being gay, just for wanting to act gay.” A good analogy to make sense of that may be someone renting out a billboard they own. They can choose which customers to take based on the messages those customers want to display, but they cannot refuse a customer based on who the person is. But when the business is to broadcast the customer’s message, the business can deny service based on the contents of that message. In this case, Smith wants to provide a service that is essentially an internet billboard (a website), and she has proven she is willing to serve gay customers. So she seems well within her right to refuse to create same-sex wedding websites.
Framed this way, her case would succeed on free speech grounds. Even Ian Millhiser, one of the most reliably progressive court writers in the country, says this is an "uncharacteristically strong argument" and a "very strong First Amendment argument."
The problem, though, is that we don't have any tangible details to suss out the complicating factors. For instance: Rather than say she won't create a wedding website for same-sex couples, Smith could tell a same-sex couple she's happy to work with them, but she won't design a website that features them kissing or describes their union as a marriage. She'd be explicitly protected to take this stance, and the couple (and the state) can't force her to do otherwise. So no gay couple in their right minds would want to use her, and Smith could effectively decline that work.
However, if Smith decided to launch a wedding website business with 10 pre-made designs for customers to choose from, but then refused to sell one of those designs to a gay couple, that would seem to be an explicit violation of Colorado's anti-discrimination law. This is why it’s so hard to rule on a hypothetical case with no grounding facts: these details and nuance matter.
This is also why the Supreme Court very rarely takes up cases based on hypothetical issues, and why the argument that this case should be thrown out has a lot of merit. If Smith had come to the court with a real example of a real gay couple actually forcing her (with the state’s backing) to design them a custom wedding website, that'd be one thing. But she isn't.
Of course, that doesn't mean the Court will throw the case out. In fact, it looks highly unlikely that will be the result here. Instead, it's possible the Court tries to rule narrowly and draw some kind of line about what qualifies as speech or artistic expression and ensure that Smith is on the right side of it to win.
In the end, if this conflict were exactly as Smith has concocted it, I think she'd have a good argument for free speech protections. Since some details of the case are entirely hypothetical, though, and the concrete facts that should determine its outcome are nonexistent, I'm most convinced by the argument that it should simply be thrown out and litigated when there is an actual conflict to address.
Your questions, answered.
Q: In today's article you mentioned 'Hunter's lucrative career leveraging his father's name'. What are your thoughts about whether the Trump children leveraged their father's presidency in their business dealings?
— Art from Austin, Texas
Tangle: I got this response from so many of my readers who are liberal or left-of-center. The short answer is: Yes, they did. There was really no way around this, and it was one of the fundamentally novel and difficult things about Trump's presidency. He (understandably) refused to give up his businesses to run for president, his kids work for the Trump Organization, and as the businesses continued to operate they probably benefited from their connection to the White House.
I don't really think there is any debating this. Eric Trump and Donald Trump Jr. run the Trump Organization, which was taking in millions of dollars a year from around the globe while their dad was president. They have customers on nearly every continent, which raises numerous opportunities for conflicts of interest and quid pro quos with foreign governments. There was one day where Trump and Ivanka Trump had dinner with Chinese President Xi Jinping and hours later trademark approvals for Ivanka's jewelry company were granted. Coincidence? Maybe. Worth investigating? Definitely.
Just like with Hunter, my position is that sussing out instances where illegal activity took place is critical — and nobody should be off limits. What I find funny is that I got accused of 'whataboutism' for, in an article about Hunter Biden, making a comparison to Trump and his children — then received a slew of emails from people on the left saying, "What about Trump and his kids! Shouldn't they be investigated?" That is actual whataboutism. And my response to it, as it is to any 'what about' argument, is that both things are problems.
The Trumps should also be investigated... and they are, on several fronts. The Trump Organization was just found guilty of tax fraud and is under investigation by multiple entities across New York and the country. It’s difficult to imagine a scenario where the family’s business could be under more scrutiny than it already is.
Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.
Under the radar.
In the last week, widespread demonstrations in China and Iran have led to the relaxation of zero Covid policies and the potential abolishment of the so-called morality police, respectively. China announced it was scrapping many of its quarantine and testing requirements as well as curtailing the power of local officials to shut down entire city blocks (Wall Street Journal). Meanwhile, a top Iranian official said the nation is reviewing its mandatory hijab law and claimed the morality police had been "abolished" (CNN).
Numbers.
- $401 million. The amount of money spent on Georgia's Senate race, making it the nation's most expensive race in 2022.
- $1.4 billion. The amount of money spent on just four races in Georgia since the beginning of 2020.
- 3,537,358. The number of people whose votes have been counted in Georgia's Senate runoff so far.
- 1934. The last midterm election cycle when the party in power successfully defended every incumbent Senate seat.
- 40%. The percentage of Trump endorsements who won their races in battleground elections, according to Ballotpedia.
- 85%. The percentage of Trump endorsements who won their races in all elections, according to Ballotpedia.
Have a nice day.
Preet Chandi is setting out to make history. The 32-year-old British Army officer is aiming to become the first woman to ever cross Antarctica — a 1,100 mile trek — without being resupplied. Her attempt to cross the continent from coast to coast is emblematic of her nickname, "Polar Preet," which she earned after becoming the first woman of color to finish an unsupported, solo trip to the South pole. She started her Antarctic journey in mid-November and has been sharing details on Instagram. She expects the trek to take 75 days. People Magazine has the story.
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