Is web design a form of free speech?

Smith says he’s happy to serve gay customers in other ways, but he doesn’t want to send the message that he approves of same-sex marriage. Forcing her to do so under the auspices of her law, she argues, violates her freedom of speech.

But is wedding website design even a “speech”? The answer is a resounding yes when Smith suggests running her business. She promises to completely customize the look, feel, theme, message, color her palette, and other aspects of a design.

Both Colorado and the federal government, which supported the state in oral arguments, acknowledged that Smith’s proposed design was “intrinsically expressive.” Denied the allegations, but agreed that her bespoke design was “pure speech”. We will be forced to celebrate.

Therefore, much of the attention during oral arguments centered on whether forcing Smith to create a same-sex marriage website was an acceptable regulation of her representation.

One argument emphasized that while Smith may be speaking through the website’s design, the state’s public facilities law is not a direct regulation of that speech. This is a form of discriminatory anti-homosexual behavior that only prevents them from refusing to provide services.

According to this view, the state would not dictate the content of Smith’s speech. , such a message should be included in the design of all wedding websites, including those that sell to both heterosexual and same-sex couples. And her message (her speech) is unaffected, and theoretically there is no First Amendment issue.

Justice Elena Kagan made a hypothesis that overturns this conclusion. Suppose Smith included a statement on her heterosexual-only wedding web page declaring, “God bless this marriage.” This practice violates Colorado’s public accommodation laws because it does not treat heterosexual and same-sex weddings the same.

But forcing her to make a “God bless this union” statement on a same-sex wedding site would force her to celebrate such a wedding. It acknowledged that such enforcement would not be merely an “accidental” restriction on speech. Instead, it would be a direct restriction of speech presumed to be unconstitutional.

The case therefore follows the Supreme Court’s decision in 1995 that the organizers of Boston’s annual St. Patrick’s Day and Evacuation Day parade are not compelled by Massachusetts’ public facilities law. similar to what you did. Including gay, lesbian and bisexual people marching behind banners stating that they are such. .

Cagan’s hypothesis exposed a deeper flaw in Colorado’s claim that Colorado’s anti-discrimination laws are directed at action, not speech. Website designs like Parade are inherently expressive. So this regulation of behavior is really directed at speech. As the federal government has acknowledged, context matters.

The second argument equated discrimination based on status (not protected by free speech) with discrimination based on message (protected by free speech). The federal government argued that same-sex marriage breaks the distinction between status and message. Discrimination against same-sex marriage is discrimination against homosexuals. It’s like a tax on wearing a Yamluk, which the Supreme Court has suggested in previous cases, but we all know this is actually a tax on Jews. refusal to celebrate his wedding amounted to status-based anti-gay discrimination.

However, there are many problems with this argument. Among them, equating speech against same-sex marriage with discriminatory anti-gay behavior is unprecedented and dangerous. People have the right to express their views on marriage and other topics. To take the example of Yarmulke, taxes are not expressive, but wedding celebrations are.

As formulated by the federal government, the confusion of status and message also introduces unacceptable discrimination of perspective. Argued that the organization should not be forced to design a website (although religious views on marriage may be associated with the protected status of “religion” under Colorado law). regardless of). ). Such one-way rules of speech violate the First Amendment.

This is not to suggest that Smith will or should obtain a blanket proclamation that he is not required to serve same-sex weddings. (including Connie Barrett, Neil Gorsuch and Brett Kavanaugh) hinted that such broad rulings were not appropriate. It is unlikely that a court would rule that Smith could refuse to provide a pre-made website or website format for same-sex marriage that could be done. is.

ever since Obergefel v. Hodges case Hundreds of thousands of same-sex marriages have taken place in the United States since the Supreme Court declared the basic constitutional right of gay couples to marry in 2015. I have encountered only a handful of wedding service providers who refuse to take photographs, arrange flowers or bake cakes because they are against same-sex marriage.

The national tradition of pluralism under the First Amendment to the United States Constitution has allowed a small number of expressive providers to oppose same-sex marriage without compromising the genuine need to protect homosexuals in the public marketplace. can correspond to Importantly and poignantly, the very same tradition of expressive pluralism allows gay marriage proponents to change public attitudes towards same-sex marriage itself, and the recently enacted Respect of Marriage Act allows for its protection. Connected. For all, that tradition should be preserved at 303 Creative.

Dale Carpenter is Professor of Constitutional Law at the SMU Dedman School of Law in Dallas and author of “Flagrant Conduct: The Story of Lawrence v. Texas.”