In June, the Supreme Court announced its decisions in two important cases, both from Colorado, that take divergent views on freedom of speech. The more controversial was a 6-3 decision in 303 Creative LLC v. Elenis, which once again pitted claims of religious freedom against Colorado law.

As everyone now knows, Lorie Smith, the owner of 303 Creative, has strong, bona fide Christian beliefs that make her unwilling to prepare marriage websites for same-sex couples. She was more than willing to serve all customers, regardless of their sexual orientation or political preferences, in any other business transaction. Justice Neil Gorsuch held that any effort to force her to make a website against her will was a form of coerced speech, much as the forced flag salute imposed similar restrictions on Jehovah’s Witnesses eighty years ago, until upended by Justice Robert Jackson in West Virginia v. Barnette (1943).

Gorsuch made it clear that this protection did not depend on finding any wrongful conduct by the Colorado Commission on Civil Rights, which had been a big issue in the Supreme Court’s earlier decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), and meant that Masterpiece Cakeshop had zero precedential effect.

The angry dissenters in 303 Creative treated that case as a death knell for civil liberties, and Justice Sonia Sotomayor darkly condemned it as part of “a backlash to the movement for liberty and equality for gender and sexual equality” and a form of “reactionary exclusion.” She then turned off the hyperbole to insist on technical grounds that speech and expression really were not involved in this case, because the Colorado law targeted “conduct,” not speech or expression, even though the stipulated facts were to the contrary.

How to Strike a Balance?

Against this dispute, the larger structural issues also require some note. In his opening paragraph, Gorsuch describes, somewhat loosely, the Colorado law as one “forbidding business from engaging in discrimination when they sell their goods and services to the public.” But as with all such discrimination cases, it is necessary to specify the grounds on which the discrimination is forbidden. Surely, the refusal to serve deadbeats who announce in advance that they won’t pay is a form of discrimination, but one that’s fully justified. So critically Colorado’s list of taboos covers discrimination “because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry.” For some reason this list does not use the word “religion,” which occupies a prominent place on the standard lists of forbidden grounds under Title II, dealing with public accommodations under the 1964 Civil Rights Act. This raised a side tussle between Justices Gorsuch and Elena Kagan over the Colorado commission’s decision to allow a gay baker not to make cakes for a customer who wanted to state messages that the baker found “offensive.” That point introduced a jarring asymmetry in which one group can refuse to serve the other, when the reverse is not true.

But in what form should the parity take place? The aggressive policy is to expand the list of forbidden grounds to include religion, which will only foster greater conflicts concerning clashes between rival groups. The better alternative is to allow the exemptions to run in both directions. Yet strong civil rights groups remain opposed to that truce. But why?

Note that the strongest reason for an antidiscrimination law is that when businesses enjoy monopoly power, that is, as sole sellers in given markets, their refusal to deal could leave needy customers helpless. This is why historically the common carrier and public utility laws have generally decreed that such services be supplied to all customers at fair, reasonable, and nondiscriminatory rates. There are few, if any, such absolute monopolies around today, except of course for various government agencies that have sole power to issue licenses or approve forms. Gorsuch therefore hedges his description by speaking of entities that “exercised something like monopoly power,” which is promptly disparaged by Sotomayor on the ground that he cites no case in support of that theory. Yet despite her protestation, this has been a constant theme in the rate-regulation literature for natural monopolies.

There is a better way of making the basic point, and that is to speak about the relative burdens on the two sides. In this instance, it is commonly acknowledged that if the Colorado law is good, conscientious Christians will be put to the choice of abandoning conscience or going out of business, which is like the choice between “your money or your life.” Their departure from the marketplace benefits only competitors, while hurting all customers, as the size of the market shrinks. But what about the affronted customer? Well, there are hundreds of sites for bakers and suppliers of other goods tailored to same-sex marriages, serving people not only in states that have these antidiscrimination laws but also in those that do not. It takes a few seconds to find a trove of such sites, so why the fierce insistence that you have a right to be served by businesses that you don’t patronize in any case?

To make matters even worse, as Lorie Smith reports, she continues “to face horrific attacks, people saying they hope I would be raped; they want to burn my house down; they know where I live; and they want to come kill me and my family.” How does this comport with “the dignity and freedom” that the antidiscrimination is supposed to protect? Yet it remains to be seen whether Colorado officials will punish the offenders who seek to deprive her of her constitutional rights by force and intimidation.

Cyberbullying

Ironically, their job is made more difficult by a so-called free-speech case that Colorado should have won. In Counterman v. Colorado, another case from the just-finished Supreme Court term, defendant Bill Counterman sent hundreds of unwanted messages to C. W. (whose name is not given), some of which, cleverly in the passive voice, envisaged violent harm befalling her. She became a psychological wreck, and something of hermit. To protect her, Counterman was charged under a statute that fit the bill, by making it illegal to “repeatedly . . . make any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Could anyone seriously deny that Counterman knew the havoc that he had wreaked? And yet the tone-deaf seven-member majority on the Supreme Court held that his conviction had to fall under the First Amendment because the state did not show both that his statements were objectively threatening and that he was “aware of their threatening character,” or more precisely that he acted in “reckless disregard” of her interests.

Why would the First Amendment “demand” that subjective mental-state requirement?  How could Counterman not have had that awareness, given that the record shows he did everything within his power to circumvent her defenses against his intrusions? Counterman is a regrettable form of what I have long decried as First Amendment exceptionalism, in which the commonsense notions that govern daily human interactions are thrown away to accommodate such thinly veiled abusive behavior. Rightly understood, the First Amendment protects speech, but only under the common-law rules that allow for liability and criminal responsibility for assault, intentional infliction of emotional distress, defamation, and fraud. Its “freedom” does not protect antisocial behavior.

The mindset at the Supreme Court sadly seems to be spreading. The University of Chicago is a proud defender of the principle of freedom of speech and has reaffirmed “its commitment to free and open discourse” and to protect the “freedom to debate and discuss the merits of competing ideas.” The university was right to allow a communist candidate for president to lecture on campus. But does that freedom extend to the purported case of cyberbullying, all too parallel to Counterman, involving anthropology instructor Rebecca Journey? She announced an undergraduate seminar, “The Problem of Whiteness,” only to have her inbox “explode with vitriolic messages from dozens of strangers,” as the New York Times reported, all of which were instigated by a single tweet from Daniel Schmidt, a sophomore and self-styled conservative activist who took offense at her title.

As I read Chicago’s free-speech principles, proclaimed in 2015, Schmidt is an artful tormentor who should be sanctioned for abusive behavior. Yet Chicago’s Professor Geoffrey Stone, who headed the committee that created the “Chicago Statement” on free speech, observed that the committee had not examined online threats or tweets that offered only publicly available information. But sound principles are capable of expansion and application to novel cases, and it’s no excuse for Schmidt to say after the fact that he wanted to show Journey “what normal Americans think,” something he could have done in a thousand innocent ways. By giving out her university photo and e-mail address, he invited the ensuing vitriol, though he told the New York Times he condemned anyone who sent Journey hateful messages. The university should not have given Schmidt a pass on the kind of cyberbullying that is targeting victims everywhere, including Lorie Smith.

© 2023 by the Board of Trustees of Leland Stanford Junior University.

Published in Law