303 Creative LLC: A win for free expression from SCOTUS 2


The first article I came across on the Supreme Court’s 303 Creative LLC decision was an outright lie, claiming the Court had ruled businesses can now refuse service to same-sex couples. Creating panic is what a lot of news sites do best, and lots of people on social media are helping to spread the misinformation. What it actually ruled was this:

The First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy. In this case, Colorado
seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the
past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they
thought vital at the time. But abiding the Constitution’s commitment to the freedom of speech means all will encounter ideas that are “misguided, or even hurtful.” Hurley, 515 U. S., at 574. Consistent with the First Amendment, the Nation’s answer is tolerance, not coercion. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Colorado cannot deny that promise consistent with the First Amendment.

This ruling removes a threat from writers, artists, songwriters, Web designers, and anyone else who does creative work for hire. It isn’t specific to same-sex marriage. By the logic which the Court rejected, a Christian nationalist group could come to me demanding I write an article promoting a “crusade against atheists” and charging me with religious discrimination if I refused. If that ever happens in the future, I can point at this decision.

If, on the other hand, you get a request to design a website for a hardware store run by a Zoroastrian, and you refuse on the grounds that you don’t like Zoroastrians, even though the site would have no religious content, you might be in legal trouble. If the business and the proposed website don’t reflect the religion, the 303 Creative LLC decision probably doesn’t protect you. At least talk to a lawyer first, if you’re going to be that silly. Likewise, if you’re a caterer and don’t want to provide a cake for a same-sex wedding, talk to a lawyer.

Why would anyone even want to force someone to provide a service they hate providing? The provider will do only the minimum required by the contract, most likely doing a mediocre or sloppy job and not delivering on time. There are plenty of website designers who’d be glad to have the business. Was it really anything but an attempt to bully the designer?

The Thirteenth Amendment should also suffice to establish a person’s right not to accept a contract to perform work. If the government says that someone can approach another person and demand, under penalty of law, the performance of a task, that’s involuntary servitude.

Thanks to this decision, we can’t be forced to take on projects promoting causes or practices we dislike. What I dislike may not be the same as what you do, but the freedom belongs to us all.


2 thoughts on “303 Creative LLC: A win for free expression from SCOTUS

  • Arthur L Rubin

    One of my feeds has an article by a gay lawyer (reportedly, from a real law review journal) saying that “303 Collective” means a landlord could discriminate against him.

    What may be worse is that the majority of comments agree and say it’s a good thing.

    The only thing I can find favorable on that feed is that EVERYONE agrees that (under most circumstances) it is legal to discriminate against Democrats or Republicans (or both).

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