Civil Liberties, Constitutional Law, Featured, Rob Natelson, Uncategorized

Natelson: First Amendment favors Colorado designer in SCOTUS case

Lorie Smith owns a Colorado web design company called 303 Creative. It isn’t merely her livelihood. She believes web design is how God wants her to live her life.

Colorado’s “public accommodations” law forbids discrimination based on “sexual orientation.” Smith is willing to serve all customers, including LGBT customers.

Smith wants to design marriage websites. However, Colorado authorities claim the law empowers them to mandate specifically that she design websites for same-sex marriages.

There she draws the line: Promoting same-sex marriage, she says, “would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage—the very story He is calling me to promote.”

Smith sued the state, claiming violation of her First Amendment rights to free exercise of religion and freedom of speech. Her case, 303 Creative LLC v. Elenis, is now before the Supreme Court. That court agreed to examine only the free speech part of the case.

This essay explains why, under the original meaning of the First Amendment, Smith should win. The state and would-be “customers” interfering with her business model have no more constitutional standing than a thug who disrupts a church service or shouts down a speaker.

Public accommodations laws & SCOTUS First Amendment cases

Smith’s case is legally difficult for two reasons. The first is that Colorado’s “public accommodations” law—like those of many other states—has metastasized far beyond its original purpose.

As their name suggests, public accommodations laws originally applied to businesses, such as hotels and restaurants, serving standardized products to the public at large. Public accommodations laws prevented such businesses from discriminating against customers for reasons of race, religion, or ethnicity. These laws formed a very limited exception to the traditional rule that non-monopoly businesses may choose their own customers.

However, the Colorado legislature—as with other state legislatures—has vastly expanded its public accommodations law. It has been extended to “boutique” services that use artistic skills to create niche products for a very limited clientele. Additionally, more and more “victims’ groups” have persuaded legislators to include them within the law’s privileges. As a result, the Colorado public accommodations law now has 11 privileged categories and some subcategories. Several categories don’t consist of victims in any real sense: They consist of people who voluntarily engage in bizarre behavior, but are unwilling to accept the social consequences.

Expansions in public accommodations laws not only constrict economic freedom. Increasingly, they clash with First Amendment rights. Lorie Smith’s case is one example; the famous Colorado “Masterpiece Cake” case is another.

The second reason Smith’s case is difficult is the nature of the Supreme Court’s modern First Amendment precedents. These are almost all cases decided in the 20th century by liberal–activist justices. Those justices did too much guessing and not enough research. So what passes for modern “First Amendment law” often has little connection to the real First Amendment.

Smith lost in the three-judge court of appeals by a 2–1 margin. In accordance with 20th-century Supreme Court precedents, the majority ruled that the state mandate didn’t violate Smith’s freedom of religion because it was “neutral” and “of general applicability.” Also in accordance with 20th-century precedents, the court ruled that (1) Smith’s artistic expression is First Amendment “speech” but (2) the mandate overrides her free speech right because of Colorado’s “compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.”

The ruling is utterly divorced from the real meaning of the First Amendment.

Freedom of speech and freedom of the press

The First Amendment reads as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Even though the amendment mentions only “Congress,” 20th-century SCOTUS decisions applied it to state governments as well. The correctness of those decisions is debatable, but let’s accept them for present purposes.

The amendment bans six kinds of government action: (1) establishing—i.e., giving preferential treatment to (pdf)—any particular religion, (2) prohibiting free exercise of religion, (3) abridging “the freedom of speech,” (4) abridging “the freedom … of the press,” (5) abridging the right of peaceful assembly, and (6) abridging the right to petition.

By the amendment’s original meaning, “speech” is in-person communication. “The press” is communication through a medium, such as a newspaper, letter, or (today) a broadcast or website. Thus, when Smith designs websites, she isn’t exercising freedom of speech, as the court of appeals held, but freedom of the press.

As originally understood, the First Amendment doesn’t distinguish between political, artistic, or commercial messages. It doesn’t distinguish between messages issued by natural persons, associations, or corporations, nor (contrary to a suggestion by the court of appeals) does it distinguish between messages that are gratuitous and those that are paid for. All are protected equally.

Connections among First Amendment rights

All six First Amendment rights are tightly related, for all derived from the same 18th-century practices. For example, in the 18th century, a great deal of political speech took the form of church sermons before assembled congregants, and important sermons often were printed in newspapers or pamphlets. Thus, a single chain of events could implicate freedom of religion, freedom of speech, freedom of assembly, and freedom of the press.

Alternatively, speakers might address a political assembly, which then adopted formal “resolves.” Such “resolves” frequently were published in newspapers or pamphlets and/or converted into petitions. Again, a single chain of events could implicate freedom of speech, freedom of assembly, freedom of the press, and the right to petition.

Freedom of the press almost always was (and is) inseparable from several other First Amendment rights. Establishing and operating a newspaper (or designing and maintaining a website) requires cooperation among financiers, reporters and other writers, technicians, managers, printers, suppliers, distributors, and customers. This cooperation requires speech, assembly, and written communication.

What these close connections tell us

Because of their close connections, all First Amendment rights have similar limits. For example, they don’t extend to obstructing national defense in time of war, they don’t extend to unfairly damaging the reputations of others, and they don’t include violating others’ rights or disturbing the public peace. As the 1786 New Hampshire constitution affirmed:

“Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason … provided he doth not disturb the public peace, or disturb others in their religious worship.”

On the other hand, within their limits, these rights may not be impaired even by a law that, in the opinion of the judiciary, “furthers a compelling purpose.”

Another common principle behind all these First Amendment rights is this: When you lawfully exercise rights, you may exclude people who seek to interfere. For example, a religious congregation’s right to free exercise encompasses a power to exclude disrupters and non-believers. The right to assembly encompasses power to exclude those who disrupt or refuse to follow the assembly’s rules. A newspaper may exclude interlopers from wandering about the premises. Conservative and libertarian speakers on college campuses have learned that their right to speak often depends on excluding those who want to shout them down.

The results for Lorie Smith

In designing websites, Smith is exercising both freedom of the press and freedom of religion. State officials have no more authority to censor her message or her religious choices than they have the authority to censor newspaper editorials or pastoral sermons.

On the contrary, her press and religious rights give her the power to exclude anyone from her business who would interfere with her exercise of those rights.

Robert G. Natelson, a former law professor, taught Constitutional Law and First Amendment. He is the senior fellow in constitutional jurisprudence at the Independence Institute in Denver and authored both “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015) and several scholarly articles on First Amendment history.  A version of this article originally appeared in The Epoch Times.


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