Of stalking horses and dogs that did not bark: 303 Creative LLC v Elenis, standards of review, commercial speech, and the end of the beginning of the modern First Amendment

web designThe opinion of Gorsuch J for the US Supreme Court in 303 Creative LLC v Elenis 600 US __ (2023) (Opinion (pdf) | Justia) has been widely welcomed on the US political right as a victory religious rights and just as broadly deplored on the US political left as a defeat for LGBTQ+ rights. Many on both sides agree, however, that – either way – it is an important defence of free speech. I am sorry to say that it is nothing of the sort. It is a stalking horse for an approach that will have pernicious consequences for the First Amendment.

Gorsuch J for the Court (Roberts CJ, and Thomas, Alito, Kavanaugh and Barrett JJ concurring) held that the First Amendment prohibits Colorado from forcing the appellant, a designer who intended to produce customized and tailored wedding websites, to create expressive designs conveying messages with which she disagrees, such as for for same-sex marriage. He began his analysis with a paean to the First Amendment, drawn from a century of Supreme Court authority (citations omitted):

The framers designed the Free Speech Clause of the First Amendment to protect the “freedom to think as you will and to speak as you think.” … They did so because they saw the freedom of speech “both as an end and as a means.” … An end because the freedom to think and speak is among our inalienable human rights. … A means because the freedom of thought and speech is “indispensable to the discovery and spread of political truth.” … By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a Nation. For all these reasons, “[i]f there is any fixed star in our constitutional constellation,” … it is the principle that the government may not interfere with “an uninhibited marketplace of ideas,” …

Going from the general to the specific, he continued in this vein, affirming that the First Amendment protects freedom of speech “regardless of whether the government considers such speech “sensible and well intentioned or deeply ‘misguided,’ … and likely to cause ‘anguish’ or ‘incalculable grief,’ …” and that “the government may not compel a person to speak its own preferred messages”.

Silver BlazeNoble sentiments all. What’s not to like? Stipulate that the wedding websites the appellant intends to create involve her speech; accept that Colorado seeks to compel speech she does not wish to provide. Even so, something is missing; there is a dog that has not barked; and that’s what’s not to like. In the Sherlock Holmes short story “The Adventure of Silver Blaze” (The Strand, December 1892 (pdf)), a famous race-horse was stolen and his trainer was killed. Inspector Gregory of Scotland Yard asked Holmes: “Is there any other point to which you would wish to draw my attention?”. Holmes replied “To the curious incident of the dog in the night-time”. Gregory, presumably a bit testily, observed that: “The dog did nothing in the night-time”. Holmes commented, presumably knowingly: “That was the curious incident”. As Holmes later explained, “I had grasped the significance of the silence of the dog, … Obviously the midnight visitor was someone whom the dog knew well”. Similarly, here, there is a very important – indeed, ominous – silence. In the court below (6 F4th 1160 (10th Cir, 2021)), the majority of the Court of Appeals for the Tenth Circuit (Briscoe J, Murphy J concurring; Tymkovich CJ dissenting) held that, although the appellant’s First Amendment rights were engaged, the State satisfied strict scrutiny: Colorado had a compelling interest in ensuring equal access to publicly available goods and services, and no option short of coercing speech could satisfy that interest. Gorsuch J acknowledged en passant that governments have a “compelling interest” in eliminating discrimination in places of public accommodation (slip op, at 12), but this was not in the context of considering whether the Colorado law survived strict scrutiny or – for that matter – any standard of scrutiny at all. Indeed, he did not undertake any such analysis. It was sufficient for him that the appellant’s speech rights were engaged.

I had thought it that it was a truth, universally acknowledged, that a restriction upon a right may be justified by satisfying a standard of scrutiny. Even Gorsuch J knows this. Only the previous day, he had joined the opinion of the Chief Justice for the Court in Students for Fair Admissions, Inc v President and Fellows of Harvard College 600 US __ (2023) (Opinion (pdf) | Justia) in which Roberts CJ held that race-based admissions programs did not survive strict scrutiny. Gorsuch J largely considered statutory matters in his concurrence; but, when he turned to constitutional considerations, he noted that the Court’s opinion requires that “strict scrutiny’s demanding standards” have to be met (slip op, at 22). And, in 303 Creative itself, in describing the decision in the Tenth Circuit, he said that the majority reasoned that “Colorado had to satisfy ‘strict scrutiny’ before compelling speech from … [the appellant] that she did not wish to create” (slip op, at 6). Given all of this, his failure to examine a standard of review such as strict scrutiny cannot have been an oversight. He deliberately failed to engage with standards of scrutiny in this case. This is the dog did not bark; and it is telling.

In dissent in 303 Creative, Sotomayor J (Kagan and Jackson JJ concurring) held that the Colorado law in question targeted conduct, not speech – and since, on this view, the restriction did not engage the right to freedom of expression at all, she did not need to reach the question of whether it survived scrutiny. The Tenth Circuit held that, whether viewed as compelled speech or as a content-based restriction, the restriction had to – and did – satisfy strict scrutiny: Colorado could show that it has a compelling interest, and that the restriction is narrowly tailored to satisfy that interest (Reed v Town of Gilbert 576 US 155, 164 (2015)). The appellant’s intended sale of websites would be a commercial venture, which Colorado sought to argue brought it outside the First Amendment, but which Gorsuch J held made no difference on this issue: paid for or not, it was still speech protected by the First Amendment. But if either he or Sotomayor J had gone further in their different analyses and considered whether the restriction satisfied scrutiny, the commercial nature of the appellant’s speech might have triggered, not strict scrutiny, but the special intermediate standard of scrutiny that the Court currently applies in commercial speech cases. In Central Hudson Gas & Electric Corporation v Public Service Commission of New York 447 US 557, 566 (1980) Powell J (for the Court) held that, in such cases, a four-part analysis has developed:

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

On the facts of 303 Creative, this analysis is easily satisfied. First, as Gorsuch J laboured mightily to establish, the appellant’s speech is protected by the First Amendment: her intended wedding website business concerns lawful activity and is not misleading. Second, as Gorsuch J acknowledged, and as Sotomayor J laboured mightily to establish, the governmental interest in ensuring equal access to publicly available goods and services and thus to eliminating discrimination in places of public accommodation is substantial. Third, the Colorado restriction directly advances that governmental interest. Fourth, it is no more extensive than is necessary to serve that interest. And, as we have seen, the Tenth Circuit held that the Colorado restriction satisfies the even more demanding standard of strict scrutiny. Indeed, on this view, 303 Creative might well have afforded the Court the opportunity to consider the question whether the Central Hudson test should be foresworn in favour of applying strict scrutiny in commercial speech cases (eg, Matal v Tam 582 US __ (2017) (Opinion (pdf) | Justia (2017) (Thomas J; concurring) (slip op, at 1)). On the other hand, the Colorado restriction might not survive the application of United States v United Foods, Inc 533 US 405 (2001), where obligations upon fresh mushroom handlers pay assessments used primarily to fund advertisements promoting mushroom sales did not survive Central Hudson scrutiny as mediated through Glickman v Wileman Brothers & Elliott, Inc 521 US 457 (1997). But none of this was done, and Gorsuch J’s analysis is incomplete as a result. Worse, this failure to engage with standards of scrutiny was deliberate. It is the dog did not bark in his opinion.

Last year, in New York State Rifle and Pistol Association v Bruen 597 US __ (2022) (Opinion (pdf) | Justia), the Court held that, to justify a firearms regulation, the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearms regulation, and it explicitly rejected any standard of review such as strict or intermediate scrutiny. Thomas J delivered the opinion of the Court, which Gorsuch J joined without comment. I wrote then that the majority’s rejection of a scrutiny leg in constitutional rights analysis was distinctly nutty, and I argued that to abolish standards of scrutiny in constitutional rights analysis would be a particularly nutty conclusion, especially in the First Amendment context, where it would undo more than a century of jurisprudence. That, however, seems to a destination at which Thomas J would be more than happy to arrive: in Bruen, he asserted that his approach to the Second Amendment accords with the Court’s approach to other constitutional rights, such as the First Amendment (slip op, at 15). That 303 Creative was the perfect case in which the Court could take a Bruen approach to the First Amendment was immediately spotted, and welcomed and decried in equal measure. Although Gorsuch J did not explicitly do this, he deliberately eschewed the standards of scrutiny approach in 303 Creative just as surely as Thomas J had done in Bruen, and he has more than laid the groundwork for a later case explicitly to take that step. This would be terrible outcome, as it would undo the century of caselaw which formed the basis of Gorsuch J’s opening paean in 303 Creative.

There is one small beam of light in this dark conclusion. In my discussion of this possible consequence of Bruen, I speculated that an eschewal of standards of scrutiny and a reliance on history and tradition would lead to the reversal of New York Times Co v Sullivan 376 US 254 (1964). Thankfully, this did not happen in 303 Creative; and, whatever happens to First Amendment standards of scrutiny in the near future, this Court is not going to reverse Sullivan, not least because it resoundingly reaffirmed it last week in Counterman v Colorado 600 US __ (2023) (Opinion (pdf) | Justia). The Court held that, to prosecute a true threat of violence, the prosecution must prove that the defendant had some subjective understanding of his statements’ threatening nature. Kagan J (Roberts CJ, and Alito, Kavanaugh and Jackson JJ concurring) applied the Sullivan standard of knowing or reckless falsity in that context. Sotomayor J concurred in judgment; and, although she would not have reached the question of whether the Sullivan should be applied, she exhibited no skepticism of the decision itself (for what it’s worth, Gorsuch J joined most of Sotomayor J’s opinion, but not the part that included her analysis of the Sullivan issue). Barrett J dissented, but she did not seek to undermine Sullivan; rather, she accepted it, but argued that it does not stand for the broad proposition ascribed to it by the majority. Only Thomas J, repeating his long-standing criticism, and claiming to apply the First Amendment as it was understood at the time of the Founding, argued that Sullivan was a flawed, policy-driven analysis that should be reconsidered and overruled. Whatever the merits of Counterman, it stands at least for the proposition that New York Times v Sullivan is safe for the time being.

Scalia and Kagan JJSo 303 Creative LLC v Elenis does not undermine New York Times Co v Sullivan. That is a small mercy for which we should be very grateful. However, by deliberately keeping silent on the applicability of standards of scrutiny such as strict scrutiny, Gorsuch J has left the door more than open to a Bruen approach to the First Amendment. He had succeeded Scalia J on the Court. Scalia J had taught Kagan J how to hunt duck (they are pictured left on a hunting trip in Mississippi). Indeed, he died after a day hunting quail. And he, at least, would have known that a stalking horse was used by hunters of wildfowl: the birds would fly away from approaching humans, but not animals; so hunters would hide behind stalking horses until the fowl were within range. A metaphorical stalking horse permits a concept to be advanced under cover, tactically preparing the ground, but with little risk if it does not prosper. In this respect, Gorsuch J may be taking another leaf out of his predecessor’s book: his deliberate failure to engage with standards of scrutiny in 303 Creative is a stalking horse for the dismantling of such standards in the First Amendment context in an appropriate future case.

After the Allied victory in the second battle of El-Alamein near the end of 1942, Churchill said that it did not spell the end of the war; and he continued: “It is not even the beginning of the end. But it is, perhaps, the end of the beginning”. Gorsuch J’s opinion in 303 Creative does not spell the end of a century of First Amendment jurisprudence. Given that his undermining of First Amendment standards of scrutiny was done sub silentio, it is not even the beginning of the end. But, without vigilance and pushback, it is may very well spell the end the beginning of the modern First Amendment.