Forced speech is "free" speech?

By Deacon Mike Manno

(The Wanderer) – Okay, how can it be that forced speech is free speech, or even that suppressed speech is also free speech? Well, that’s the brainchild of Judge Mary Briscoe, a Clinton appointee to the Tenth Circuit Court of Appeals, which is now being airmailed to the United States Supreme Court.

The case comes from Colorado and arises out of the state’s public accommodation law, the same one that the state Civil Rights Commission used to try to punish Masterpiece Cakeshop owner Jack Phillips for refusing to bake a wedding cake for a same-sex wedding. This one has similar issues except it involves wedding promotional videos.
Lorie Smith is a web designer and graphic artist who works out of her own studio, 303 Creative. Smith, the sole owner of 303 Creative, sincerely believes that same-sex marriage conflicts with God’s law and as such violates her deeply held Christian beliefs. As a result she will not offer her services to create wedding websites to celebrate those weddings.

In addition, she plans to publish a statement on her website explaining her religious objections and her policy against “creating websites promoting and celebrating ideas or messages that violate my beliefs.”

Colorado’s law, however, prohibits discrimination in two areas of concern for Ms. Smith:
First is what is referred to as the Accommodation Clause: “It is a discriminatory practice and unlawful for a person…to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services . . . or accommodations of a place of public accommodation.”

And a companion provision forbids any public notice “that indicates that the full and equal enjoyment of goods, services…or accommodations…will be refused, withheld or denied,” referred to as the Communication Clause.

Thus before she went public with her plans, she filed a pre-enforcement action against the state seeking to adjudicate her rights and to prevent the state from enforcing either clause of the public accommodation law against her.

She lost in the district court and on appeal the two Clinton appointed justices, Mary Briscoe and Michael Murphy, ruled against her while the Bush-appointed Timothy Tymkovich, serving as chief judge, penned a fiery dissent.

The court’s majority decision starts off well enough for Smith clearly rejecting the state’s arguments that she lacks standing or an injury; the court found that she has a reasonable basis for concluding that if she moves ahead with her plans she will be prosecuted.

It wrote that while Smith’s goal may be to only discriminate against same-sex marriage, it is actually discrimination against same-sex couples and would expose her to liability under the state law, noting that the law, while providing some exceptions, did not provide a religious exception.

Turning to the question of Smith’s free speech rights, the court did recognize her argument that the creation of wedding websites is pure speech and cited several cases where wedding videos and invitations have been held as speech. And it recognized that the First Amendment has protections against compelled speech and that those protections apply to unsophisticated expressions as well as those by professional publishers.

But then it turned to a key question. In order to show that such a restriction is legal and meets the constitutional test of strict scrutiny, the government must show a compelling interest for the statute to survive constitutionally. “Here, Colorado has a compelling interest in protecting both the dignity interest of members of marginalized groups and their material interests in accessing the commercial marketplace.”

“The Accommodation Clause is, however, narrowly tailored to Colorado’s interest in ensuring ‘equal access to publicly available goods and services.’ When regulating commercial entities, like Appellants, public accommodations laws help ensure a free and open economy. Thus, although the commercial nature of Appellants’ business does not diminish their speech interest, it does provide Colorado with a state interest absent when regulating noncommercial activity . . . recognizing the changing nature of the American economy and of the importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups.”

The court then compared Smith’s services to a monopoly in upholding the Accommodation Clause restrictions in the Colorado law:

“Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere…our analysis emphasizes the custom and unique nature of Appellants’ services….LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services.”

Then turning to the Communication Clause the court held that the First Amendment does not protect the statement Smith wants to place on her website explaining her belief in traditional marriage and the reasons why she would refuse work for same-sex weddings.

The court wrote, “Having concluded that the First Amendment does not protect Appellants’ proposed denial of services, we also conclude that the First Amendment does not protect the Proposed Statement. Yet, the Proposed Statement also expresses an intent to deny service based on sexual orientation — an activity that the Accommodation Clause forbids and that the First Amendment does not protect. Thus, the Proposed Statement itself is also not protected and Appellants’ challenge to the Communication Clause fails.”

The dissent pounced: “The majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience. In doing so, the majority concludes not only that Colorado has a compelling interest in forcing Ms. Smith to speak a government-approved message against her religious beliefs, but also that its public-accommodation law is the least restrictive means of accomplishing this goal. No case has ever gone so far. . . .

“Indeed, this case represents another chapter in the growing disconnect between the Constitution’s endorsement of pluralism of belief on the one hand and anti-discrimination laws’ restrictions of religious-based speech in the marketplace.

“It seems we have moved from ‘live and let live’ to ‘you can’t say that.’ While everyone supports robust and vigorously enforced anti-discrimination laws, those laws need not and should not force a citizen to make a Hobson’s choice over matters of conscience. . . . But what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws.

“The First Amendment prohibits states from ‘abridging the freedom of speech’ or the ‘free exercise’ of religion. And the freedom to speak necessarily guarantees the right to remain silent. So the majority ushers forth a brave new world when it acknowledges that [the state law] compels both speech and silence — yet finds this intrusion constitutionally permissible. [It] forces Ms. Smith to violate her faith on pain of sanction both by prohibiting religious-based business practices and by penalizing her if she does speak out on these matters in ways Colorado finds ‘unwelcome’ or ‘undesirable’.”

The appellate court made “a very disturbing decision that what Lorie does is custom art and is speech that should be given the highest protection under our Constitution and yet the Tenth Circuit held that Colorado can force her to create messages that violate her beliefs,” ADF senior counsel Kate Anderson told my radio audience.

“What they are trying to force her to do is to violate her religious beliefs by promoting a view of marriage that is not in accord with her beliefs then telling her she cannot promote her view of marriage on her own website,” she added.

Now, on to the Supreme Court.

(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday at 10 a.m. CT on Faith On Trial on IowaCatholicRadio.com.)