Would you believe the American Civil Liberties Union (ACLU) and Republican Florida Gov. Ron DeSantis have something in common? They both believe that the state should be able to force web companies to host content that these platforms disagree with or find morally objectionable in some fashion.
If that sounds remarkable, check out the amicus brief that the ACLU submitted Friday defending the authority of the state of Colorado to make a small web company host pictures of gay weddings against the will of the company’s owner. Note how similar it is to Florida’s attempts to force web companies to carry campaign messages from political candidates against the platforms’ will.
Lorie Smith, owner of web design firm 303 Creative, is challenging Colorado’s Anti-Discrimination Act, part of which requires businesses in the state to accept customers regardless of race, sex, sexual orientation, and many other categories. Smith has moral objections to the legal recognition of same-sex marriage. She says does not intend to discriminate against any LGBT customers, but she also believes that forcing her to post images of gay weddings on her site is mandating that she carry expressive speech and violates her First Amendment rights.
The Supreme Court agreed in February to hear 303 Creative LLC. v. Elenis later this year. The question at hand is whether a public accommodation law can compel an artist to speak or remain silent without violating the First Amendment.
The brief by the ACLU rejects the central question and instead attempts to reframe the entire argument as whether “an artist who has chosen to open to the business to the public at large” can be prohibited by a public accommodations law from “discriminating against customers on the basis of a protected characteristic.” From the very start, we hit a problem that is consistent throughout this brief. The ACLU repeatedly treats refusing to host a particular image or message (a gay wedding) as discrimination against an individual or couple (a gay person or couple). This is obviously not the same thing, and it strikes at the heart of the flaws of the ACLU’s argument.
Then, the ACLU argues that because 303 Creative is a business that sells services to the public, it must offer those goods in a nondiscriminatory manner according to Colorado law. Again, the ACLU deliberate blends the message and the client: “So, too, here, 303 Creative need not offer any particular website service to the public, but once it chooses to sell wedding-website design services to the public at large, it cannot selectively decline to sell those same services to same-sex couples.”
Smith’s point is that she’s not refusing to sell all services to same-sex couples. She’s refusing to host wedding pictures of same-sex couples because she holds religious objections to gay marriages and, therefore, does not want her company to be forced to be a vehicle for expressing this celebration.
The ACLU would have us see speech discrimination and customer discrimination as the same thing. But if 303 Creative refused a customer’s request to host a bunch of images of an ISIS terrorist attack, is that discrimination against the customer’s religion if the customer is also Muslim? Clearly, it’s not. She’s not turning away the customer because he or she is Muslim. She’s refusing to host images she finds objectionable. In this exaggerated example, it’s very easy to recognize the imposition on free speech and the violation of the business’ First Amendment rights.
Similarly, it was fairly easy to see that Florida’s attempt to mandate that Facebook carry campaign statements by anybody who runs for certain offices in the state would force the tech giant to potentially carry some content it would find truly offensive and display it in front of other customers who probably didn’t want to see it. And so it shouldn’t have come as a surprise that federal judges determined that Florida did not have the authority to make such demands of these businesses and, by attempting to do so, violated their First Amendment rights.
In this case, the ACLU is doing everything in its power to encourage the Court to reject any consideration of Smith’s and 303 Creative’s First Amendment rights, even going so far as attempting to reframe the central question to make it appear as though these rights are not relevant to the case. The ACLU would have us believe this is just a neutral application of an anti-discrimination law and that creating exceptions for businesses that involve creative expressions or customized works is “unworkable.” This is clearly untrue. In 2019, Kentucky’s Supreme Court determined that a T-shirt printer couldn’t be forced to print pro-gay messages on his products in violation of his religious beliefs. The court was easily able to determine the difference between discriminating against a customer vs. rejecting a message. It is not confusing at all!
One of the more depressing inclusions in this ACLU amicus brief is its use of a Supreme Court case from 1968, United States v. O’Brien, to attempt to bolster its argument that the state of Colorado has the power to regulate speech in this way. In that case, David Paul O’Brien was convicted of violating federal law by publicly burning his draft card in protest of the Vietnam War. The Supreme Court determined that the prohibition against burning draft cards didn’t violate the First Amendment because the federal government had a compelling interest in maintaining the draft and the rule was narrowly tailored to achieve that goal.
O’Brien was represented in this case by Marvin M. Karpatkin, who after this case would become an ACLU attorney and join its board of directors. He died in 1975. There’s now a fellowship program at the ACLU named after Karpatkin.
In this brief, the ACLU essentially throws Karpatkin’s arguments in the trash bin all in favor of supporting the power of Colorado to force a web company to carry gay wedding photos. Once, lawyers connected to the ACLU fought for the right to burn draft cards. Today’s ACLU lawyers say, “No one disputed that O’Brien’s burning of a draft card to protest the Vietnam War was expressive. But because the government’s interest in prohibiting destruction of draft cards was unrelated to what any particular act of destruction communicated, intermediate scrutiny applied. And the result would have been precisely the same had O’Brien burned his draft card as performance art rather than political protest,” and apparently believe that this is a good and defensible outcome.
How far they’ve fallen. Take a look at this paragraph:
Any incidental burden these laws impose on public accommodations that sell expressive goods and services is no greater than necessary to vindicate the government’s anti-discrimination interest. Where the goal is to end discrimination in the public marketplace, an exemption for all businesses that might be deemed “expressive” (theaters, bookstores, architecture and law firms, hairdressers, gardeners, florists, caterers, and the like) would defeat the law’s very purpose.
This would seem to argue that Colorado could mandate bookstores and theaters to carry books and movies that contain content that the business owners find objectionable. I’ll do the ACLU a favor here and point out that’s not what they mean. It has again confused messages with customers. They are attempting to argue that businesses that produce “expressive” works can’t turn away customers because they fall under protected characteristics, which is true. But, yet again, they’re deliberately confusing “serving a customer” with “printing and distributing the customer’s message.”
The ACLU’s brief ends by listing a litany of wedding-related customizable products, including custom M&Ms, and wondering if this means that all of these businesses could refuse to serve same-sex couples. Do they want to? It’s worth noting here that most businesses don’t want to refuse service to them. This is not an actual crisis for gay couples. The only people who are potentially harmed here are those who get punished by the state.
If we’re going to push absurd hypotheticals here, let me conclude with some of my own. Could 303 Creative be forced by Colorado law to host pictures of a gay wedding where a Bible is burned as part of the ceremony? What about a Koran? What about an American flag? Or a Russian flag? Would the ACLU defend Colorado’s right to force 303 Creative to host images of a gay couple burning down ACLU headquarters at their wedding ceremony?
This is an embarrassingly bad brief by the ACLU, turning its back on decades of protecting citizens against authoritarian demands on citizen speech. They even threw one of their own lawyers under the bus in the process.