There is no “horseshoe and hand grenade” exception in the First Amendment, and a recent SCOTUS case confirms this

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On December 5, the US Supreme Court heard oral argument in 303 Creative v. Elenis, a case involving Laurie Smith, a graphic artist from Colorado. Lori creates custom websites for clients of all backgrounds, including those who identify as LGBT. He’s not just going to create special websites celebrating same-sex marriage for anyone.

The oral argument, like the subsequent media debate, reflected two different ways of thinking about the case. Is it about businesses refusing to serve customers because of who they are? Or is it about artists refusing to speak content because of what it says? Is it about “who” or “what?”

A recent New York Times article by David Cole, the ACLU’s national legal director, featured the former. But you know the article is promoting stories, not facts: it never presents the actual facts of the case or Lori’s actual arguments.


In fact, Colorado recognized these facts, as did the lower court. Lori is “willing to work with all people regardless of their sexual orientation,” rejects projects that “promote content” if she disagrees, and only works that “celebrate the wedding” and “story of every couple” creates custom, unique, expressive wedding websites. .” There are no ready-made templates. There is no plug ‘n’ play. It’s all talk. It’s all about the content. And all this is without a doubt.

The Supreme Court case 303 Creative v Elenis contrasts two views of the Constitution, but it’s really about preventing the government from coercing speech.

So when Cole claims Laurie is discriminating because she refuses to create “the same” websites for same-sex and opposite-sex weddings, it makes no sense. Why would anyone want to target someone else’s wedding website with pictures, text, images and stories and redirect them to another wedding? Lorie does not offer similar, ready-made, plug-in-play websites. And if he did, he would gladly sell such websites celebrating marriage between a man and a woman to anyone.

Cole’s point is that he thinks it’s still the same service if you’re sharing details like text, images and stories — the actual content — on websites. For Cole, these are all public websites. But if you replace a website celebrating John and Jim with their pictures and text about how they met, fell in love and got married with content, pictures and text about someone else’s wedding and marriage, it gives a very different message. For Mark and Paul or Tom and Jane.

There is no “horseshoe and hand grenade” exception in the First Amendment. The government cannot compel a Muslim calligrapher to write “Believe in Jesus” for a church because he is merely providing “the same calligraphic services” when he writes “Believe in Muhammad” for a mosque. Newsflash: Different words and different pictures can mean very different things. And celebrating same-sex marriage is a very different message than celebrating marriage between a man and a woman.

Nor can the ACLU or other Colorado advocates, such as the Biden administration, consistently apply their “equal service” theory. At oral argument, Judge Amy Coney Barrett asked the Biden administration whether the government could compel a gay website designer to create a website for a Catholic student group promoting his religious beliefs about marriage.

The government cannot compel a Muslim calligrapher to write “Believe in Jesus” for a church because he is merely providing “the same calligraphic services” when he writes “Believe in Muhammad” for a mosque.

The lawyer said no, because “We do not think that the expression of particular views is closely related to having a particular religion.” Translation: Refusing to talk about religious content you don’t agree with isn’t discrimination, and that’s fine, but Lori has to talk about same-sex wedding content she disagrees with because it’s somehow impermissible discrimination. Barrett’s response says it all: “So this is a cut that only applies to a same-sex context?”

The rest of Cole’s argument falls apart once we see that it’s all about substance and that the state picks ideological winners. According to Cole, Laurie—unlike wealthy artists like photographer Annie Leibovitz—chose to go into business, “to profit from the public market,” and thus give up her First Amendment freedoms.


But that’s not how the First Amendment works. Artists do not lose control over what they say when they choose to make a living. For example, a newspaper does not give up its right to control its content by running a newspaper business. Students do not waive their right not to pledge the flag by attending public schools. Drivers do not give up their right not to display ideological slogans on their cars by choosing to drive on the road. The Supreme Court cannot compel the government to speak in these situations because it has held that when the government asks you to choose something as important as your rights or your livelihood, it is not a choice at all.

Once again, the ACLU cannot consistently apply its theory. After all, the ACLU has supported claims by billion-dollar social media companies that control what others say on their platforms, saying “the market power of a private speaker does not abrogate their First Amendment rights.” So, according to the ACLU, tech companies enter the market and retain their First Amendment freedoms, but individual artists like Laurie and everyday Americans do not.

All of this suggests that the ACLU is no longer advocating free speech, but rather wants the government to target some views the ACLU disagrees with. Fortunately, the Supreme Court does not interpret the First Amendment that way, and indeed asked the right question about 303 Creative: Can the government compel any artist to express any opinion they find objectionable?

However, the debate over the case highlights another question we should all be asking: What happened to the ACLU?


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