The Supreme Court Issues a Superb Free-Speech Decision—Literally
Editor’s note: The following piece originally appeared at National Review on June 30, 2023.
Words matter. So does their meaning. Consider the word “literally.” No, literally. Consider it. Sometimes people use it to reference something actual, free of elaboration. Other times they use it figuratively, full of exaggeration. “It was literally out of this world” could describe Neil Armstrong’s trip to the moon (actual) or someone’s experience at a Taylor Swift concert (figurative — most likely). Language enthusiasts debate whether “literally” should have one or both meanings, but ultimately individuals decide how to use the word to best express themselves — literally or figuratively.
But what if the government compelled you to say “literally” using only the government’s preferred meaning? Worse, what if the government punished you if you didn’t comply? Clearly, that would be wrong. Don’t you have the right to your own speech?
When choosing which projects to take on, Lorie happily considers requests from anyone. That includes her LGBT clients. But while she serves all people, she can’t create custom websites that express all messages, regardless of who asks. She applies this concept across the board, from marriage to any other topic.
But Colorado sought to control her speech. The state threatened to force her to create unique websites celebrating an idea of marriage inconsistent with her beliefs. Fearing the plight of Jack Phillips — another artist in Colorado who has been prosecuted for literally over a decade for creating custom expression in line with his faith — Lorie filed a lawsuit to protect her constitutional right to free speech.
In 303 Creative, the Supreme Court said that Colorado’s efforts to compel her speech violated the First Amendment by coercing her “to create speech she does not believe.”
On its way to reaching that conclusion, the Court made three points crystal clear.
First, Lorie serves everyone, including those who identify as LGBT. As the Court noted, Colorado stipulated that she creates websites for “all customers” so long as the requested design does not violate her beliefs. But she “will not create expressions that defy any of her beliefs for any customer.”
Second, her custom websites are speech protected by the First Amendment. “All manner of speech,” the Court held, “qualify for the First Amendment’s protections; no less can hold true when it comes to speech like [Lorie’s] conveyed over the Internet.” Nor did Lorie lose her right to speak according to her convictions when she chose to sell her speech. The Court reminded that “the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers).”
Third, the Court followed precedent dating back to the 1940s to reaffirm that the government has no valid interest in compelling speech. Back then, the Court said states couldn’t force schoolchildren to repeat a pledge that violated their faith. Now, the majority said Colorado could not force Lorie “to speak in ways that align with its views but defy her conscience about a matter of major significance.”
Unfortunately, some have claimed that this decision will literally cause the sky to fall. The majority called this “pure fiction all.” These three points show why the ruling is good news for all of us. It means the government can’t force an atheist artist to paint a Christian cross, a blogger who supports abortion to promote a pro-life rally, or anyone else to give voice to ideas they object to.
303 Creative ensures that states can continue, invoking protected classifications, to use public-accommodation laws to stop discrimination while simultaneously safeguarding everyone’s right to free speech. So all Americans, including Lorie, remain free to express messages and ideas consistent with their beliefs.
This decision encourages human flourishing and a healthy, diverse society. It allows people to pursue truth. And it secures our liberty to speak in sync with our beliefs without being afraid that the government will misuse the law to exclude our views from the public square.
In short, the Supreme Court upheld the bedrock principle, central to our democracy, that the government doesn’t get to decide which ideas people are allowed to express.
So 303 Creative is a free-speech win-win-win. And that’s a win for literally all Americans. No exaggeration.
