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Supreme Court of the United States

10th Circuit Court Ruling Puts Freedom of Speech On the Chopping Block

By Jonathan Scruggs posted on:
September 22, 2021

This piece first appeared in The Detroit News and has been republished with permission.

We do not lack these days for choice in the media marketplace. Multiple streaming services. Too many Twitter opinions. Countless YouTube videos. We often feel overwhelmed with so many options. But a recent court opinion threatens that diversity.

The case involves Lorie Smith, a website designer who started her own web-design firm to gain more freedom than the corporate world offered. As her own boss, Smith began pursuing projects she believed in: creating websites to help small businesses, nonprofits and churches.
As a Christian, it was natural that she wanted to begin creating websites for weddings -- ceremonies with deep religious significance to her. And just as she did for other types of websites, she wanted her wedding websites to promote content consistent with her values. That meant content promoting marriage between one man and one woman.
But that freedom went too far for Colorado. A state public accommodation law requires Smith to design and publish websites celebrating same-sex weddings because she offers to create websites celebrating opposite-sex weddings. Unable to speak messages contrary to her faith, Smith challenged the law for violating her First Amendment rights.
And a federal appellate court largely agreed with her. The court said that Smith's websites were protected speech under the First Amendment, and that Colorado's law singles out and targets her views on marriage for punishment by forcing her to promote ideas that she disagrees with. So far so good.
The court even conceded -- as Colorado officials admitted -- that Smith doesn't discriminate against anyone. She serves her clients of all different backgrounds regardless of who they are, including LGBT persons. She merely chooses the websites she creates based on their content, not who asks for them.
We don't force atheists to create websites promoting Christianity or Muslims to create websites promoting Judaism. This shouldn't be any different.
But despite all this, the court ultimately ruled 2-1 against Smith, saying Colorado could override her First Amendment rights, target her views and force her to speak messages she disagreed with. Why? Because Smith's one-person design studio had somehow created a monopoly.
While many other designers could create websites like Smith's, no other designer in America could create websites exactly like Smith's. So the state could justifiably force Smith to profess the state's preferred views to ensure the people could obtain access to her "unique" expression.
If that sounds like a stretch, it is. The dissenting judge called this decision "unprecedented," "novel" and "staggering" in its scope. The reason is obvious. If speakers become monopolies anytime they create something custom, then every speaker has become a monopoly. And if the state can override the First Amendment in this situation, then everyone's rights are on the chopping block.
But does the First Amendment really allow officials to force LGBT web designers to create websites criticizing same-sex marriage? Or force African American painters to create portraits celebrating the Ku Klux Klan? And it doesn't stop with individual artists.
Every newspaper, television and movie studio, publisher and online-content creator creates content unique to them. Do officials really have the power to force The New York Times to run Donald Trump's promotional ads? Or Fox News to air President Joe Biden's promotional material?
Forget your political leanings or whether you agree with Smith's view on marriage. Our right to choose what we say and what we celebrate transcends those debates. We all lose if the state can force any of us to speak contrary to our core convictions.
That is why Alliance Defending Freedom will be asking the U.S. Supreme Court to hear Smith's case and overturn the lower court decision. In our marketplace of ideas, it's a good thing when speakers offer unique perspectives and unique voices. Those unique voices deserve more protections, not less.
Let's hope the Supreme Court agrees and steps in to make sure the marketplace of ideas stays open for each of us.

Jonathan Scruggs

Jonathan Scruggs

Senior Counsel, Director of the Center for Conscience Initiatives

Jonathan Scruggs serves as senior counsel and director of the Center for Conscience Initiatives with Alliance Defending Freedom.

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