Post on Public Accommodations and the First Amendment: 303 Creative and "Pure Speech" @YaleLawSch

Robert Post, Yale Law School, has published Public Accommodations and the First Amendment: 303 Creative and "Pure Speech." Here is the abstract.

In the recent case of 303 Creative v. Elenis, the Court held that the First Amendment precludes the application of a Colorado public accommodations statute to a potential designer of wedding websites (Lorie Smith) who proactively objected to working for clients involved in same-sex weddings. At stake in the opinion is the important question of how antidiscrimination statutes can be reconciled with the First Amendment. Gorsuch structured his opinion for the Court on the basis of a simple syllogism. The major premise of the syllogism is that the Smith’s websites would be “pure speech”; the minor premise is that the First Amendment forbids the compulsion of “pure speech.” The conclusion is that Colorado could not apply an antidiscrimination statute to compel Smith to work for clients who would require her to produce websites that she would rather not construct. Although “pure speech” is not a well-defined First Amendment concept, Gorsuch seeks to establish the major premise of his syllogism on the basis of stipulations to which the parties in 303 Creative agreed. These stipulations are both tendentious and extensive, taken almost verbatim from Smith’s complaint. The article closely examines these stipulations to show that in 303 Creative Gorsuch defines “pure speech” to consist of bespoke words, images or symbols that are designed to communicate and that reflect a vendor’s own speech. It argues that, absent the parties’ stipulations, Smith’s websites likely should not have been characterized as this kind of pure speech. The article then examines the minor premise of the 303 Creative syllogism. It shows that (1) The premise inaccurately summarizes First Amendment doctrine; (2) The premise effectively undermines all public accommodation laws, which can be enforced only if vendors are required to offer equal treatment to customers regardless of race, sex or sexual orientation. This requirement will inevitably compel vendors to engage in “pure speech”; (3) Pure speech is routinely compelled if it is commercial speech; (4) Pure speech cannot be compelled if it is public discourse; and (5) 303 Creative should thus have turned on the question of whether Smith’s websites are properly characterized as commercial speech or as public discourse. As written, 303 Creative is so abstract and overreaching that it will empower lower courts to mutilate public accommodations laws at will. The likely outcome is that 303 Creative will be erratically applied in ways that reflect the antecedent political ideology of courts. The Supreme Court itself exemplified this problem by not applying the reasoning of 303 Creative to its own decision in Students for Fair Admissions (“SFA”) v. President and Fellows of Harvard, where it used an antidiscrimination statute (Title VI) to alter educational messages that an expressive association (Harvard University) sought to communicate. Much of the confusion of 303 Creative likely stems from the Court’s implicit transfer of concepts applicable to Free Exercise claims to the distinct and inappropriate context of free speech jurisprudence.

Download the article from SSRN at the link.