The U.S. Supreme Court: Free Speech Trumps Public Accommodations Law

I contend as a matter of reasoned opinion rather than infallible fact that the Free Speech protection in the U.S. Constitution applies to not only human beings, rather than to non-human legal “persons” (e.g., corporations), but also to speech where the purpose is speech rather than something else. I have written elsewhere on the mistake in treating corporations as if they were human beings, so I treat only the second claim here. I reference the first claim only as context for my broader claim that the U.S. Supreme Court has tended to over-extend applications of the free-speech clause not only beyond its original intent, but also common sense. The latter violation is particularly astonishing. 

That clause, I submit, is oriented to forbidding the state from blocking or punishing what a person would otherwise say or write. The state compelling speech is a different matter, though that too ought to be prohibited in a free society. Also, where the purpose is business, standing up to the state in what a person says or writes is yet another matter. So if I open a business that sells ice-cream, for instance, I would be mistaken were I to view having chocolate ice-cream as a matter of free speech. I would not be selling chocolate ice-cream in order to say something, but to sell a product.

In Creative LLC v Elenis (2023), the U.S. Supreme Court decides in favor of an evangelical Christian whose business includes web-page design for weddings. She maintained that her religious belief against gay marriage should be an exception to the state’s public accommodations law, which bars discrimination against a protected class. Colorado, on the other hand, “argued that its Anti-Discrimination Act regulates sales, not speech, to ensure ‘equal access and equal dignity.’”[1] In other words, making and selling a product (or service) in order to profit financially is not speech. 

So Gorsuch, who wrote for the majority, incorrectly refers to “speech like Ms. Smith’s conveyed over the internet.”[2] At the very least, it is misleading to characterize Smith as conveying speech on the internet, for her purpose and the contours of her activity was to make and sell a product. She was not posting essays, for instance, or constructing her own website (her company’s website too was oriented to selling products rather than conveying “speech”). For a bit of context, the Russian bloggers posting essays online on the Ukraine war at the time would have shaken their heads in disbelief had someone told them that the website of a business engaged in selling products is really about speech rather than business. Even Target, an American retail company, did not put gay Pride flags for sale on the company’s website to make a statement; rather, the company was selling a product. Were the company making a political or ideological statement by adding gay Pride colors to the website, then that would fall under free speech. Smith was not making a political or ideological statement; rather, she was selling a product—webpages for weddings.

Gorsuch attempts to hold the ruling back from enveloping business in its entirety by carving out the production of a product that is "expressive" of the person who makes the product. But a web-page is not a piece of art unless that is the purpose. Also, virtually any product could be said to be "expressive," for product-design itself expresses the work of a designer. Put another way, Smith's own personal website, or even the website of of her business, can be said to express herself in a way qualitatively different from the websites she makes for clients. Gorsuch conflates the two and thus ignores the distinction. He thus unwittingly set up a slippery slope by which virtually anyone in business can obviate public-accommodations law simply by arguing that one's work expresses oneself in some way. Locke, after all, argues that a person mixing one's labor with a piece of land is sufficient to turn it into private property. 

The real tension associated with public-accommodations law is not free-speech; rather, the right of private property is that which is circumscribed by the government mandating that protected classes be served. Smith could have argued that her business’s niche was Biblically-based weddings, based on the fact that the business was her private property. For she was using her property for productive rather than speech purposes, and the substance of her enterprise was making and selling products rather than publishing speeches or essays, or even making a political or ideological statement.

Public accommodations law is not absolute. A store manager of a Starbucks coffeeshop had demonstrated this in having two people removed because they had refused to purchase anything and then ignored the manager’s authority, which in turn is rooted in the right of private property. That those two people were of the Black race is besides the point; anyone, protected class or not, who sits at a table in a restaurant but refuses to order anything is subject to the right of private property. Insecure, Starbucks’ upper management capitulated to the unfair criticism by showing the public that the company could discriminate against Caucasian employees, including a regional manager, who had won her case in court less than a month before the Supreme Court’s decision on “free speech.”

Unfortunately, the dissenting opinion of the court obsesses over discrimination, and President Biden said the court’s decision was unthinkable. The opposition missed an opportunity to point to the jurisprudential mistake in the majority opinion, wherein selling a product is itself characterized as free speech. This rather basic category mistake was missing from the dissent, given the salience of ideology on the court, which in turn is another problem.  I submit that public discourse in the U.S. too often skirts or overlooks underlying problems, while obsessing on flash-point ideological agendas. I write in large part to uncover depth such that it might be more highly valued and sought after.

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1. Andrew Chung, “US Supreme Court Deals Blow to LGBT Rights in Web Designer Case,” Reuters, June 30, 2023.

2. Ariane de Vogue and Devan Cole, “Supreme Court Limits LGBTQ protections with Ruling in Favor of Christian Web Designer,” CNN.com, June 30, 2023 (accessed same day).

Pittsburgh Businesses Encroach on Public Property with Impunity

Private property, competition, and the market-mechanism have come to be assumed to be integral to the economic system of Capitalism. The assumption that this cluster of attributes is necessary is faulty though, as, for example, the state can own some or all of the “means of production” (i.e., firms) that are subject to market competition, especially if privately-owned enterprises also exist. China had a mix of private and state-owned enterprises compete in several industries when the state opened the economy to competitive forces setting supply and demand. In Wisconsin, the Green Bay Packers, an NFL football team, is owned by the residents of that city, such ownership being Socialism, and yet that team has competed not only to win, but also in the hiring of players and managers. A competitive market does not require that the property of the means of production be privately owned. Even in the case of private ownership of companies, the widely accepted custom wherein the owners receive the residual profits after expenses is dogmatic in the sense of being arbitrary. Alternatively, creditors or employees/managers could receive any excess revenue after expenses have been paid. In short, Capitalism as it has come to be known and exercised is more arbitrary than capitalists may realize. Even the taken-for-granted distinction between public and private property is not as stark as may be typically supposed. This is no excuse, however, for businesses that knowingly encroach on public property as if it were their own private property. A Capitalist economic system predicated on private property may contain not only the seed of monopoly, as Marx claimed, but also a tendency of private enterprises to over-reach on the public domain. If so, government has a responsibility to prune back the overweening tentacles. Two examples make this point.

Once while walking on a narrow sidewalk, I glanced down at my phone and was instantly startled as I ran into and tumbled over a metal chair in the middle of the sidewalk. A restaurant’s employees had set up tables on the side of the sidewalk with chairs out into the middle of the sidewalk, and a bit beyond a table had been placed in the middle of the sidewalk, with a potted plant placed making it even more difficult to navigate around the tables and chairs. Who would want to eat in the middle of a sidewalk, with people passing by at close range? The manager of that restaurant was guilty not only of missing this rather basic point, but also of the incredible presumption that the public sidewalk was essentially part of the business’s private property, which astonishingly placed the public at a disadvantage on public property!

A month earlier, I had called the zoning department of the city. I had been assured that a restaurant cannot obstruct a sidewalk. However, the city then failed to act, perhaps capitulating to the business interest (and wealth). So, after I nearly fell from running into the chair, I called the city again. The employee who answered insisted that the city gives permits allowing businesses to permanently block or obstruct public sidewalks. So, I called again and spoke with another person who had more of a sympathetic ear when I explained that I had almost fallen, and that a hazard exists because numerous pedestrians walk into the street because of the obstruction. Two weeks later, with Franks Bar and Grill still interlarding on public property, I left a phone message for the code enforcement person. Two weeks after that, as the photo below demonstrates, the restaurant was still blocking the sidewalk. 

I know that the city had opened an investigations months earlier, so I surmise that the restaurant's owner or manager knew of the complaints and dismissed them. Additionally, I suspect that the city of Pittsburgh had bowed to the business interest at the expense of the public good. This is as much of a problem as is the presumptuousness and dismissiveness of a business that can take advantage of a corrupt municipal government.

Another example of companies encroaching on public "space" is the overreaching of security guards and private police employees presuming that their turf extends beyond a company's private property. When I lived temporarily in Pittsburgh, while I was walking on a public sidewalk along a hospital that was part of the University of Pittsburgh, I stopped at a food-truck only to realize that a security guard was perched on a small hill from which he seemed to have been presumptuously patrolling the sidewalk. In the distance was another security guard. 

Initially, I thought he was in line to order food from the food truck as I was. So I held back. Strangely, he likely viewed my standing position with suspicion, or, more likely, dislike as I was looking generally in his direction. Not all subtle, he strategically walked past me up close and stopped further along on the sidewalk, presumably there to talk to another food vender, yet his body position reveals his real orientation. 

The presumptuousness of that university-affiliated hospital was visible in the choice of the security guard’s uniform mimicking that of the police—including with a silver “badge” and handcuffs. If the hospital was breaching the state's monopoly of police powers, which in general is a larger problem, I submit that the visible artifacts added to the possible presumptuousness of the wearers that company security hyper-extends "off campus" even if the state permits it. The artifacts also misled the public into supposing that the company's police were the same as the city police. At the very least, a company's private security or "police" employees do not necessarily receive the same training as the regular police receive. There is also the problem of legitimacy from a democratic standpoint once the state's monopoly of police powers, as per the U.S. Constitution, is violated by companies. 

Just a public property is distinct from private property, a company's employees are distinct from a government's police force (and power). Encroachment onto a government's use of force puts a company in a conflict of interest in that its security employees are not in an even-handed position in disagreements between a company's management and its stakeholders. Human nature being what it is, we should not assume that the employees would be fair in cases in which a management oversteps its own authority ethically or legally. 

I contend that business managers have a tendency to overreach, even perceiving public property as fair game to be captured for the private, narrower, interest of a business as the public interest suffers. This tendency on the microlevel is the same as that which fuels a company in a competitive industry to become a monopoly. John D. Rockefeller, for example, pressured competitors unwilling to be bought by his Standard Oil company. The titan had the audacity to view himself as a Noah saving the drowning competitors from being ruined by the destructive competition especially in the 1860s, and as a Christ-figure saving them. Unlike Rockefeller, Jesus in the Gospel stories does not kill off people who are unwilling to accept his help. Rockefeller even pressured the railroads to pay Standard Oil a “drawback” when they carried the oil of his competitors. Such encroachment breached what was thought to be ethical business conduct at the time, which in turn included some practices that would come to be regarded as unethical. The titan’s presumptuousness thus extended to treating the railroads as akin to his own property. By such means of encroachment, Rockefeller built his company into a monopoly in the refining industry. Fortunately, the U.S. Supreme Court broke up Standard Oil in 1913, but made the mistake of keeping in tact the same ownership in all of the resulting companies. The managements thereof were even allowed to be in the same building! A willingness to stand up to powerful businesses and competency as to how to break up their excessive market power from previous encroachments are both important if the private-property attribute of modern Capitalism is not to eviscerate the attributes of competition and the market-mechanism. Given the tendency of business managers to shirk the public interest, society needs some means of protecting public property from the inevitable encroachments.

American Law Enforcement: Extricating the Aggressive Personality and Presumption to Violate the Law Off-Duty

The assumption that more police than we might expect have in not being subject to the law even while off-duty suggests that hiring, training, and retention practices of police departments are inadequate. The presumption of being an ubermench and thus untouchable is dangerous when the person can legally carry a gun. Memo to police departments in the U.S.: please notify your employees that they are subject to local, state, and federal laws, period. Any indication of any presumption to the contrary subjects the culprit to termination. Unfortunately, police departments and their respective city governments in the U.S. are far from such enlightenment as could hold their employees accountable.

In June, 2023, a police employee of Orlando, Florida faced charges by the Seminole County Sheriff’s Office for reckless driving and resisting and fleeing from a deputy. The culprit “refused to show the deputy his license, got back in his car, and took off . . .”[1] He had been driving at 80 mph in a 45 mph zone. It is significant that he thought that going to work was a viable excuse for speeding. Even more incredibly, he told the deputy to notice his police uniform, as justifying the speeding! When the deputy asked for the man’s driver’s license, the violator abstinently said a quick, “NO!,” and turned to get into his car before fleeing the scene. How dare you as me for MY license! That’s something I do to OTHER PEOPLE. How arrogant, wrong, and incorrect. Moreover, the man’s reaction to being held accountable provides the public with a view of someone having the legal use of a gun and yet not willing to be held accountable himself. He may have incorrectly appropriated the former President Nixon’s erroneous declaration that if the president does something, it is legal. A local police employee is not even close to being the president of the United States. Even aside from prosecuting the presumptuous law-breaker in Florida, the city of Orlando would have done well in considering whether such a person should be granted the legal right to use lethal force.

My point includes the subtle one that prosecution is not sufficient and is thus inadequate as a litmus test for deciding whether a police employee literally takes liberties off duty should remain employed. Due to lack of evidence of a malicious intent, a police employee of Chicago, Illinois was not found formally guilty of assaulting a 14-year-old, whom the off-duty employee had wrongly assumed had stolen his son’s bike. The employee inserted one of his knees in the eighth-grader’s back.[2] Regardless of whether there was sufficient evidence for a criminal prosecution, the photograph of the man on top of the boy should be enough for a chief of police to decide that such presumptuousness predicated on being a police employee should eliminate the attitude from being on a police force. The presumption in being allowed to attack a child who happens to walk past a stolen bike would be a red flag even in the case of a police employee on-duty. Off-duty, a man who happens to work as a police employee is just like any other dad. While any father may feel like being judge, jury, and executioner of a suspected thief of one’s son’s bike, what father would actually act on the urge? Hence, the off-duty police employee can be seen as presumptuous, and even as questionable psychologically, as can a police employee who curtly says no when asked for his driver’s license for speeding to get to work. An aggressive tenor can be detected from both men, and this alone should bar them from having the legal right of lethal force.

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1. Connor Hansen, “Orlando Police Officer Accused of Reckless Driving, Leaving Traffic Stop after Exchange with Deputy,” Fox35 Orlando, June 12, 2023 (accessed June 17, 2023).

2.  Alex Hammer, “Moment Off-Duty Chicago Cop Kneels on 14-Year-Old Boy’s Back after Mistakenly Accusing Him of Stealing a Bike,” DailyMail.com, July 4, 2022 (accessed June 17, 2023).