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.
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.
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).
