Double Aspect

The question of when a government entity ― including regulators such as, say, the Law Society of Ontario, which exercise coercive powers on the government’s behalf ― can compel people subject to its power to say things that it, rather than they choose to say is a pressing one. It is central to recent legal cases such as the successful challenge to the Ontario government’s requirement that gas stations post anti-carbon tax stickers (CCLA v Ontario (Attorney General), 2020 ONSC 4838), as well as public controversies, for example around the Law Society’s attempt to exact a “statement of principles” demonstrating its members’ commitment to the “diversity, equity, and inclusion” ideology. It is also a question on which, as it happens, I have written. My chapter “Compelled Speech: A Conscience- and Integrity-Based Approach” came out in Dilemmas of Free Expression, edited by Emmett Macfarlane, in 2021. 

So I wanted to highlight some passages from the majority opinion in today’s decision of the Supreme Court of the United States in 303 Creative v Elenis, written by Justice Gorsuch. The question the case decided is whether 303 Creative could be required to design unique, custom-made websites to promote same-sex weddings ― something to which its owner and sole operator, Lorrie Smith, objected on religious grounds. The parties stipulated, among other things, that 303 Creative would have no objection to taking other sorts of commissions from LGBTQ customers; its objection was not to the people involved, but to the message conveyed.

The Court holds 6-3 that requiring 303 Creative to design websites to whose content it objects would violate its freedom of speech and that of its owner. I make no definitive comment on whether this is right as a matter of US law (though I find the opinion compelling). What I’m more interested in is whether it is right as a matter of first principles. I think it is.

Justice Gorsuch sums up the issue as follows: “Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?” (19) This is the right framing. When speech compulsion reaches beyond a requirement to disclose factual information in the speaker’s possession, to matters of opinion on which the speaker either disagrees with the government or would simply prefer to stay silent, it raises issues of conscience. To say things you do not believe in is to act wrongly, and ― as a matter of principle ― the government ought not to be doing this.

As Justice Gorsuch explains:

Colorado seeks to put Ms. Smith to a … choice: If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in “remedial … training,” filing periodic compliance reports as officials deem necessary, and paying monetary fines. (11)

In a free society, people should not have to face such a choice. This is so regardless of whether they are engaged in economic activity or merely expressing personal views:

Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.” …  But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. (16-17)

This logic applies to the exercise of a regulated profession too.

Justice Gorsuch explains what favouring speech compulsion would involve:

[A] contrary approach would mean [that] the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait. … Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. … Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. … Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so. (12; citations omitted.)

Tellingly, I think, Justice Sotomayor’s dissent does not address these hypotheticals. In truth, I do not think that people who object to the ruling in 303 Creative or those who have defended compelled speech in other cases, for instance in the “Statement of Principles” controversy, would for a moment endorse speech compulsions of this sort. But the logic of their position inexorably takes them there.

Justice Gorsuch suggests that their failure to see this may be due to the fact that they “trust[] … governments to coerce only ‘enlightened’ speech. But if that is the calculation, it is a dangerous one indeed.” (24) So it is. We should have re-learned, by now, that government will not always be in the hands of the enlightened. We know, indeed, that a faction is chomping at the bit to seize its power to undo Enlightenment itself. We need constitutional guarantees against their ambition. Instead, people who claim the label of progress for their misguided endeavours would dismantle them. They would do so with good intentions of course, because they want to create a society in which people are never demeaned on account of who they are. And this is a noble goal ― but one whose pursuit has become not only demeaning to people who would be forced to act in violation of their conscience, but reckless to boot. Justice Gorsuch insists that

the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas … we consider “unattractive,” … “misguided, or even hurtful” … But tolerance, not coercion, is our Nation’s answer. (25-26)

It should be ours too.