Yesterday, the Court heard oral arguments in 303 Creative LL v. Elonis. Lorie Smith is a web designer doing business as 303 Creative LL.
Smith would like to provide her services for heterosexual weddings, but as a matter of religious conscience feels that she cannot provide the same services for same sex weddings. Colorado forbids discrimination on the basis of sexual orientation and interprets its statute to include businesses that provide services for heterosexual marriages but refuse to provide services for same sex marriages. Accordingly, 303 Creative LL sought a declaratory judgment that the law was unconstitutional on free speech and freedom of religion grounds. The Court agreed to hear the case on free speech grounds; it did not agree to hear the freedom of religion issue.
Creative argued that designing a website is free speech. Colorado argued that Smith was proposing to engage in discriminatory commerce, a form of conduct. But the case should not turn on conclusory labels. Designing a web page is 100% conduct and 100% speech, and even if it is primarily speech, substantially more is needed to conclude that Colorado has violated the Constitution.
There is no absolute right to remain silent in the face of a government command. Consider, for example, police commands to speak in a lineup, compelled testimony, and police commands to show identification. This should include web design.
But the government cannot compel speech content that contradicts the conscience of an individual (such as a mandatory flag salute); (such as the live free or die slogan on license plate) (forced courier of a government message that contradicts the beliefs of an individual).
The web designer cannot show in this case that she will be forced to produce content with which she disagrees. On that point, the case is bereft of needed facts. To be sure, there are circumstances where a person is such an important part of the wedding that human dignity would be violated by compulsory participation even if the person is not forced to utter content with which the person disagrees. Consider a minister or a singer forced to say prayers or sing songs at a wedding even if the prayers or songs do not have content that is opposed by the minister or singer. Surely, a web designer is not an important part of a wedding.
This does not mean that I expect the conservative majority to find for Colorado. Rather I expect the Court to screw up free speech doctrine when it could and should have had the integrity to wrestle with the freedom of religion issue.
On the speech issue, see generally Steven H. Shiffrin, What is Wrong with Compelled Speech?, 29 J.L. & Pol. 499 (2014).