Webdesign graphics6/30/2023 ![]() ![]() It’s like a tax on wearing yarmulkes, the Supreme Court suggested in a previous case,which everyone knows is really a tax on Jews. The federal government argued that the distinction between status and message collapses in the case of same-sex marriage: discrimination against same-sex marriage is discrimination against gay people. Context matters, as the federal government conceded.Ī second argument equated status-based discrimination (not protected by free speech) with message-based discrimination (protected by free speech). Identical wording (like “God blesses this union”) on one website takes on a different meaning on another. Because website design, like a parade, is inherently expressive, this purported regulation of conduct is in fact directed at speech. The Kagan hypothetical exposed the deeper flaw in Colorado’s argument that its anti-discrimination law is directed at conduct rather than speech. Compelled inclusion of the marchers behind a banner would be compelled speech. Patrick’s Day-Evacuation Day parade in Boston could not be forced by the Massachusetts public accommodations law to include a contingent of gay, lesbian, and bisexual people marching behind a banner identifying them as such. The case would therefore be analogous to a decision by the Supreme Court in 1995, holding that organizers of the annual St. It would instead be a presumptively unconstitutional direct regulation of speech. The lawyer for the federal government acknowledged that such a compulsion would not be a mere “incidental” restriction on speech. This practice would violate Colorado’s public accommodations law because it would not treat opposite- and same-sex weddings the same.īut forcing her to make the statement “God blesses this union” on the same-sex wedding sites would compel her to celebrate such weddings. Suppose Smith included a statement proclaiming, “God blesses this union,” on the web pages for opposite-sex weddings only. Justice Elena Kagan posed a hypothetical that undermined this conclusion. ![]() And her message (her speech) is unaffected, the theory goes, so there’s no First Amendment problem. That may hurt her business, but she will not be violating the state’s anti-discrimination law because she’s treating everyone the same. But she must include such messages on all her wedding website designs, including those she sells to both opposite- and same-sex couples. She can even post messages on the wedding website designs that explicitly denounce same-sex marriages. Colorado claims that it is preventing Smith only from refusing to serve gay couples, which is a form of discriminatory anti-gay conduct.Īccording to this view, the state would not dictate the content of Smith’s speech. One argument emphasized that, while Smith may be speaking through her website designs, the state public accommodations law is not directly a regulation of that speech. Therefore, much of the attention during the oral argument focused on whether forcing Smith to create same-sex wedding websites is a permissible regulation of her expression. She promises to fully customize the look, feel, theme, message, color palette, and other aspects of the design.īoth the Colorado and federal governments, supporting the state at oral argument, conceded that Smith’s proposed designs are “expressive in nature.” The appeals court, though it ultimately rejected Smith’s constitutional claim, agreed that her bespoke designs are “pure speech.” If the public accommodation law can be applied to Smith’s website designs, she will be compelled to celebrate same-sex unions through her speech. But Colorado’s public accommodations law (like those in 28 other states) prohibits businesses from discriminating on the basis of sexual orientation in the sale of goods and services to the public.īut is wedding website design even “speech?” As Smith proposes to practice her business, the answer is an unequivocal yes. In the case, Lorie Smith proposes to create custom websites only for those weddings uniting a man and a woman. The argument revealed weaknesses in the government’s case, but also a court that may not give the petitioner everything she wants. Elenis , which raises the question of whether the state of Colorado can force a graphic designer to create websites for same-sex weddings that she opposes. Last week, the Supreme Court heard oral argument in a case called 303 Creative LLC v. Published in the Boston Globe under the heading Is web design a form of free speech?: 16, Dale Carpenter, Dedman School of Law professor, SMU Dallas, for a piece arguing that Colorado should not be able to coerce web designer Lorie Smith to create online material for a gay couple in the celebrated 303 Creative case before the Supreme Court, because to do so would violate her right to freedom of expression. ![]()
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