A recent ruling by the U.S. Court of Appeals for the 10th circuit should seriously worry writers. It says that the government can ignore the First Amendment when it feels like it. In the case in question, the court acknowledged that website design work is “pure speech,” which means it’s protected by the First Amendment. “Appellants are forced to create websites — and thus, speech—that they would otherwise refuse.” But then it argued that the State of Colorado has a “compelling interest” in forcing a website designer to work for the plaintiff. It ruled that, in spite of the plain First Amendment violation, the designer can be forced to create speech.
The “compelling government interest” argument as a way to get around the Constitution is nothing new in law, but its scope in this case is alarming. Using it to force people to engage in work which the judges acknowledge is “pure speech” is something new, but we’ve had warning. Biden said that “no amendment to the Constitution is absolute. You can’t yell fire in a crowded theater.” That line references Shenk v. United States, in which Wilson’s government sent a man to jail for distributing anti-draft literature. Justice Holmes used the “fire in a crowded theater” analogy to justify locking people up for criticizing the government. Since then it’s become a favorite line for people who want to suppress speech they don’t like.
If website designers can be forced to engage in speech because the government has a “compelling interest” in compulsion, so can writers. The judges have effectively tacked an “if we feel like it” clause to the Bill of Rights. A government which tosses out the rights it supposedly guarantees for the sake of its “interest” is a government of gangsters. It’s no different from a thief who admits that the property he’s taking is yours but says he has a “compelling interest” in stealing it.
No, that’s not quite right. What these judges have done is much worse than robbery. The court said, “The product at issue is not merely ‘custom-made wedding websites,’ but rather ‘custom-made wedding websites of the same quality and nature as those made by Appellants.’ In that market, only Appellants exist.” That says that the government has an especially compelling interest in compelling the website designers because they do great, unique work. It’s the high quality of their sites which turns them into serfs. Low-quality designers who slap together a site from templates are less likely to be ordered to work, because hacks are a dime a dozen.
It’s like something out of Atlas Shrugged. The court has ruled that people can be denied their freedom because what they do is valuable. It’s punishment of good work for being good.
You’ll note that I haven’t mentioned the specific situation and motives behind the case. My aim has been to set the issue out without getting into group alliances and hostilities. But to be complete, I should mention that the website the designers are being forced to make is for a same-sex wedding. Personally, I’d be glad to write material for the celebration of any uncoerced wedding, if the situation was right. (It’s outside my usual range, but there could be special circumstances making me the best choice.) However, if someone came to me and said, “I order you to write for my event,” my reply would be “Eat shit.” If a court told me to write against my will, I’d go to jail rather than accept the status of a serf.
The government’s “compelling interests” stop where the Constitution prohibits them.