Smith brought a First Amendment case to federal court. She asked the court to affirm that, although she cannot discriminate against a customer based on sexual orientation, she may refuse to create any specific message. The district court and U.S. Court of Appeals for the Tenth Circuit declined to do so.
Strangely, the Tenth Circuit agreed that Colorado’s law was impeding Lorie’s right to free speech. The court understood that Smith is willing to create websites for customers with varying sexual orientations and acknowledged that Colorado’s law would compel her to create a message in violation of her conscience.
Regardless, in the Tenth Circuit, Colorado may force Smith to speak. The court characterized her control over her “custom and unique” product as having “monopolistic” control over the “market” of her specific designs. Refusing to provide her services to some people would, definitionally then, result in those people being denied access to an entire “market.” And access to that “market,” the court ruled, is more important than one person’s First Amendment right not to speak.
Cato has advocated that, if states are involved in the marriage business, they should extend marital licenses to same-sex couples. But we also advocate for private individuals’ and businesses’ free speech rights in this context. Now that Smith has petitioned the Supreme Court to review her case, Cato—along with the Hamilton Lincoln Law Institute, UCLA law professor Eugene Volokh, and Southern Methodist University law professor Dale Carpenter—has filed a brief supporting her. (We had also joined Prof. Volokh on a brief in the Tenth Circuit, as well as on a brief in support of videographers fighting a similar Minnesota law in the Eighth Circuit.)
The First Amendment protects both the right to speak and not to speak. The government cannot demand that a Cato scholar write an article supporting the government’s preferred policy. Similarly, it cannot compel those in web and graphic design to harness their artistic gifts in support of the state’s message.
The Tenth Circuit’s contrary conclusion is dangerous. The court’s “monopoly” rationale is foreign to Supreme Court precedent and has few discernible limits. And it undermines the right of private citizens and businesses to be able to maintain their freedom of conscience. We urge the Supreme Court to review and reject the Tenth Circuit’s decision.
