The landmark case, 303 Creative LLC v. Elenis, was a victory for the free speech rights of every citizen of this country, a fact the Supreme Court repeatedly stressed in its majority opinion. This huge win for web designers — and anyone in business who is being forced to agree with people requesting their services — confirms that the Supreme Court views the decision not to serve a customer as protected as free expression under the First Amendment of the U.S. Constitution.
Lorie Smith (of 303 Creative) refused a customer, and the public accommodation law in that state allowed her to be fined for refusing to serve that customer. In 2016, she went to court to fight the fine and has been fighting for seven years, taking it to the Supreme Court with the help of ADF (Alliance Defending Freedom), a law firm out of Scottsdale, Ariz.
I personally heard Kristen Waggoner, Lorie’s lead attorney, argue her case in front of the United States Supreme Court (U.S.S.Ct.), and she was reasonable, courteous, firm and solid in her points. The Justices all had questions, and the hearing was very polite. The Justices were all kind to each other in their responses. But the torrent of misinformation in media and online forums after the Lorie Smith victory was anything but kind.
“Had the misinformation about 303 Creative been confined to anonymous Twitter users and Reddit trolls, it wouldn’t have been worth our time to respond,” said Waggoner. “But these mistruths were peddled by those who have a responsibility and obligation to report honestly. They came from one source — the New Republic article — and only snowballed from there. In the days following the Supreme Court’s decision, we’ve seen the Colorado attorney general, former White House staff, prominent attorneys (who should, and likely do, know better), and even one Cabinet member shamefully spread the lies about our case. Americans should ignore this manufactured outrage.”
As the majority in 303 wrote, “A commitment to speech for only some messages and some persons is no commitment at all. … 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.”
By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a nation. To put it concisely, the answer to false speech is more speech. Free speech allows for the pursuit of truth. And truth is powerful. Truth prevails, and ADF stated they will continue to stand for everyone’s ability to live it and speak it.
This case reminded me of the Cake Decorator who won his case at the U.S.S.Ct. Right after he won it, he was threatened with violating the same free speech that he explained to the customer that he had just won at the highest court. When I was practicing in California, there were “vexatious litigation” penalties for that kind of conduct. It is a form of censorship that businesses have to endure at times, quite unfairly.
With 303, perhaps vexatious litigation will slow down, and the tide of censorship will give way to the back and forth of free discourse, anchored once again in our God-given, constitutionally guaranteed rights.
Retired attorney George Nicoletti was admitted to the California State Bar and Federal Bar for the Central District of California in 1969. He served as Constitutional Law Professor at Glendale College of Law for 6 years and practiced law in Thousand Oaks starting in 1972. He was admitted to the U.S. District Court in Tucson, Arizona, in 1994.
