Amicus Curiae Brief — 303 Creative LLC, et al., Petitioners v. Aubrey Elenis, et al.

No. 21-476

In the Supreme Court of the United States

________________

303 CREATIVE LLC, A LIMITED LIABILITY COMPANY;

LORIE SMITH,

Petitioners,

v.

AUBREY ELENIS, ET AL.,

________________

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

__________

BRIEF FOR TYNDALE HOUSE PUBLISHERS,

PEACHTREE PUBLISHING SERVICES, LLC,

THE FOUNDRY PUBLISHING, HARVEST

HOUSE PUBLISHERS, INC., URBAN

MINISTRIES, INC., WHITAKER HOUSE, THE

MOODY BIBLE INSTITUTE OF CHICAGO, AND

WARNER PRESS, INC. AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street #22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amici Curiae

QUESTIONS PRESENTED

1. Whether applying a public-accommodation law to

compel an artist to speak or stay silent, contrary to the

artist’s sincerely held religious beliefs, violates the

Free Speech or Free Exercise Clauses of the First

Amendment.

2. Whether a public-accommodation law that

authorizes secular but not religious exemptions is

generally applicable under Smith, and if so, whether

this Court should overrule Smith.

ii

TABLE OF CONTENTS

Page

Questions Presented .................................................... i

Table of Authorities ................................................... iii

Interest of Amici Curiae ..............................................1

Summary of the Argument ..........................................4

Reasons for Granting the Writ ....................................6

I.

Editorial discretion is a protected right rooted

in this country’s history and legal traditions. ..6

II. By sanctioning a violation of editorial

discretion, the decision below contradicts this

Court’s First Amendment precedents. ........... 10

A. The Tenth Circuit’s narrow tailoring

analysis departs from this Court’s

precedents. ................................................. 12

B. The Tenth Circuit’s understanding of

compelling government interests

contradicts this Court’s precedents........... 16

III. The decision below would allow the

government to suppress disfavored speech. ... 19

Conclusion .................................................................. 23

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Arkansas Education Television Commission v.

Forbes, 523 U.S. 666 (1998) ...................................9

Bantam Books, Inc. v. Sullivan, 372 U.S. 58

(1963) ............................................................ 6, 8, 18

Bigelow v. Virginia, 421 U.S. 809 (1975) ....................8

Boy Scouts of America v. Dale, 530 U.S. 640

(2000) .............................................................. 14–17

Buehrle v. City of Key West, 813 F.3d 973 (CA11

2015)........................................................................9

Cohen v. California, 403 U.S. 15 (1971) ............. 10, 20

Ex parte Vallandigham, 68 U.S. 243 (1863) ............. 22

FCC v. League of Women Voters of California, 468

U.S. 364 (1984) ..................................................... 10

Fulton v. City of Philadelphia, 141 S. Ct. 1868

(2021) .................................................................... 17

Grutter v. Bollinger, 539 U.S. 306 (2003) ................. 18

Heller v. District of Columbia, 670 F.3d 1244

(CADC 2011) ......................................................... 18

Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, 515 U.S. 557 (1995) ............ 12–13

iv

Janus v. American Federation of State, County,

& Municipal Employees, Council 31, 138

S. Ct. 2448 (2018) ........................................... 10, 21

Miami Herald Publishing Co. v. Tornillo, 418

U.S. 241 (1974) ........................................... 9, 15, 21

NAACP v. Button, 371 U.S. 415 (1963)..................... 17

Near v. State of Minnesota ex rel. Olson, 283 U.S.

697 (1931) ...............................................................8

New York Times Co. v. Sullivan, 376 U.S. 254

(1964) .................................................................... 23

Pacific Gas and Electric Co. v. Public Utilities

Commission of California, 475 U.S. 1 (1986) ...... 15

Parents Involved in Community Schools v. Seattle

School District No. 1, 551 U.S. 701 (2007) .......... 17

Pittsburgh Press Co. v. Pittsburgh Commission on

Human Relations, 413 U.S. 376 (1973) ..... 9, 20, 22

Riley v. National Federation of the Blind of North

Carolina, Inc., 487 U.S. 781 (1988)...................... 10

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ............ 16

Sherbert v. Verner, 374 U.S. 398 (1963).................... 16

Simon & Schuster, Inc. v. Members of New York State

Crime Victims Board, 502 U.S. 105 (1991).......... 18

Smith v. California, 361 U.S. 147 (1959)........ 8, 10, 19

Stanley v. Georgia, 394 U.S. 557 (1969) ................... 21

v

State v. Arlene’s Flowers, Inc., 441 P.3d 1203

(Wash. 2019) ......................................................... 22

Telescope Media Group v. Lucero, 936 F.3d 740

(CA8 2019) ........................................................ 9, 16

Thornhill v. Alabama, 310 U.S. 88 (1940) ................ 10

Time, Inc. v. Hill, 385 U.S. 374 (1967)........................8

Turner Broadcasting System, Inc. v. FCC, 512 U.S.

622 (1994) ...............................................................9

United States v. Stevens, 559 U.S. 460 (2010) .......... 18

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748

(1976) .................................................................... 21

Whole Woman’s Health v. Hellerstedt, 136 S. Ct.

2292 (2016) ........................................................... 19

Williams-Yulee v. Florida Bar, 575 U.S. 433

(2015) .................................................................... 19

STATUTES

42 U.S.C. § 2000a(b) .................................................. 16

Colo. Rev. Stat. Ann. § 24-34-601 ....................... 16–17

D.C. Code § 2-1402.01................................................ 20

OTHER AUTHORITIES

Jemimah Steinfeld, Novel Lines, Index on

Censorship, July 2017, at 73..................................7

vi

Livingston Rutherford, John Peter Zenger: His Press,

His Trial and A Bibliography of Zenger Imprints

(1904) ......................................................................7

Michael W. McConnell et al., Religion and the

Constitution (4th ed. 2016).....................................7

“Zenger Trial,” The Oxford Companion to United

States History (Paul S. Boyer ed., Oxford

University Press 2001) ...........................................7

INTEREST OF AMICI CURIAE *

Tyndale House Publishers was founded in 1962 by

Kenneth Taylor, the translator of The Living Bible. It

merged with Tyndale House Ministries in 2019. The

mission of Tyndale House Ministries is “[t]o minister

to the spiritual needs of people primarily through

publication of literature consistent with biblical

principles and through grants to other charitable

entities.” Tyndale publishes Bibles and other

Christian books—about 100 new titles per year.

Peachtree Publishing Services, LLC has served

publishers devoted to faith-based content for over forty

years. Its mission is to protect and advance the Bible

while helping faith-based, Christian readers engage

with it. Peachtree performs Bible proofreading, editing

of commentaries, and writing of devotionals. It helps

with products that align with the Nicene Creed, and

its work has reached over twenty million faith-based

readers in the United States.

The Foundry Publishing, also known as The

Nazarene Publishing House, was founded in 1912. Its

mission is to publish Wesleyan Holiness Literature,

primarily for the Church of the Nazarene, but it also

assists many other denominations and independent

churches. The publishing house produces several lines

of quarterly curriculum for all age levels as well as

hundreds of book titles and music products.

* All parties have received timely notice and have consented to

the filing of this brief. In accordance with Rule 37.6, no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

Harvest House Publishers was founded in 1974 and

exists to fulfill its mission to provide high quality

books and products that affirm biblical values, help

people grow spiritually strong, and proclaim Jesus

Christ as the answer to every human need. Harvest

House publishes evangelical Christian books about

social issues, current events, apologetics, Bible

prophecy, Christian living, and children’s educational

books. Each year, Harvest House publishes about 100

new books and maintains an active backlist of more

than 1,600 titles.

Urban Ministries, Inc. was established in 1970 to

serve African American churches, denominations, and

consumers with Christian education curriculum,

books, and other resources uniquely written and

designed to address the spiritual, social, and cultural

needs of this community. Serving a diverse group of

over twelve denominations and over 40,000

congregations in the African American community

requires that Urban Ministries’ resources reflect the

unique beliefs and doctrines of its denominational

customers and their congregants. Millions of African

American consumers are reached through its over 100

publications.

Whitaker House was founded in 1970 with the

mission of advancing God’s kingdom by publishing

authors who proclaim the power of the Gospel and

minister to the spiritual needs of people around the

world. It publishes Christian and inspirational books,

Bibles, and audio/visual resources. Whitaker House

works with a diverse list of authors from different

backgrounds

and

denominational

affiliations,

publishing about eighty titles in English and Spanish

each year. Whitaker House’s efforts reached more than

seven million people in 2020.

3

Moody Publishers, a ministry division of The

Moody Bible Institute of Chicago, was founded by

evangelist D.L. Moody in 1886 to proclaim the Gospel

and equip people to be biblically grounded and

practically trained, and to engage the world through

Gospel-centered living. Since its founding, Moody has

expanded to include publishing, education, and radio

ministries. With over 1,400 titles in print and global

editions in over eighty languages, Moody Publishers

serves over four million readers every year. As a

Christian ministry with specific doctrinal convictions,

Moody depends on its freedom to select the content it

publishes.

Warner Press was founded 140 years ago with the

mission of equipping the Church to advance the

Kingdom of God and give hope to future generations.

It produces content and materials that supply

churches, schools, and individuals for use in

programming, teaching, growth, and development.

Warner Press counts about 4,000 churches and 3,000

schools as clients. And Warner Press produces

curriculum for about 2,000 churches within the

Church of God denomination. It also produces greeting

cards that reach about 500,000 individuals.

4

SUMMARY OF THE ARGUMENT

Amici are religious publishers that create resources

for millions of people to grow in their faith. Amici are

diverse in many views but united in their commitment

to the principle that every speaker should have the

right to exercise their editorial and artistic judgment

in a manner consistent with their core convictions.

Amici’s publishing is an exercise in free speech, for

they both convey the speech of others and convey their

own speech by their editorial decisions about content,

layout, and design.

In that respect, they are much like Lorie Smith, the

wedding website designer who sought here to exercise

her First Amendment rights by creating websites in

accord with her faith. Colorado law, however, would

require her to create expression with which she

disagrees. It would compel her to speak in a way

directly opposed to her beliefs. The “very purpose” of

Colorado’s law, according to the court below, is to

“excis[e] certain ideas or viewpoints from the public

dialogue.” App. 24a. And the court found that is

precisely the law’s effect: Ms. Smith is “forced to create

websites—and thus, speech—that [she] would

otherwise refuse” because that speech violates her

conscience. App. 22a–23a.

Yet the court found that this blatant restriction on

free speech did not violate the First Amendment. To

arrive at that counterintuitive result, the Tenth

Circuit announced that Colorado has a compelling

interest in ensuring equal access to public

accommodations—and it presumed that wedding

websites were a type of essential public

accommodation. The court then held that forcing Ms.

Smith to speak against her own views was the only

5

way for Colorado to further that interest, because Ms.

Smith’s own “services are, by definition, unavailable

elsewhere.” App. 28a. A different designer would not,

after all, be Ms. Smith. So the State can put Ms. Smith

to this choice: speak the message we demand, or do not

speak at all.

Few decisions have so mangled the First

Amendment. The type of editorial discretion exercised

by both Ms. Smith and amici is a protected right rooted

in this Nation’s history and tradition. The First

Amendment’s protection of speech and press stemmed

in large part from various English and colonial efforts

to punish publication of disfavored books and

newspapers. When a creator conveys the speech of

others and exercises independent judgment as to

editing, content, and design, the creator’s own speech

is protected just as any other speech.

By stripping First Amendment protection from Ms.

Smith’s exercise of editorial discretion, the Tenth

Circuit departed from this Court’s precedents. Those

precedents protect speakers’ rights to speak what they

wish to speak and to refrain from speaking what they

desire not to. Though the Court has allowed narrow

speech restrictions where they are the least restrictive

means of furthering a compelling government interest,

it has rejected any suggestion that a restriction is

narrowly tailored simply because the speaker has

some sort of “monopoly.” The Court has protected the

speech of actual monopolies, like energy and cable

companies. And it has often protected the rights of

those who offer unique forms of expression, from

parade organizers to Boy Scout troops. In any case,

ensuring access to a particular wedding website

designer is not a government interest of the highest

order sufficient to compel speech.

6

Left unreviewed, the reasoning of the decision

below would lead to widespread suppression of speech.

Like Ms. Smith, amici could be forced to publish

material at odds with their religious beliefs, depriving

readers of resources about their own faith. All that the

government would need to bring down its heavy hand

of censorship on a speaker would be to identify some

“unique” public service and an “arguabl[e]” connection

(App. 11a) with a protected classification—religious

beliefs, sexual preferences, even political views—or

other government interests. App. 11a, 20a. A wide

swath of speech could be suppressed, especially ideas

that the government dislikes. Only by granting review

can this Court vindicate the First Amendment rights

of creative speakers and publishers.

REASONS FOR GRANTING THE WRIT

I.

Editorial discretion is a protected right

rooted in this country’s history and legal

traditions.

The editorial judgment of those who print, publish,

or transmit others’ speech is an essential part of the

freedom of speech and the press protected by the First

Amendment. This protection was borne of experience.

“All nations have tried censorship and only a few have

rejected it.” Bantam Books, Inc. v. Sullivan, 372 U.S.

58, 73 (1963) (Douglas, J., concurring). And colonial

Americans were all too familiar with the dangers and

temptations of governmental power over the written

word.

A few examples prove the point. After the printing

press came to England in 1476, Henry VIII quickly

realized the potential (and dangers) of such mass

distribution of the written word. See Michael W.

McConnell et al., Religion and the Constitution 559

7

(4th ed. 2016). He gave favors to certain printers and

prosecuted printers who opposed the Crown. Ibid. He

also prosecuted those who printed Protestant religious

works. See ibid. “[O]ne of the burning issues of the day

was whether the Bible should be translated and

published in the vernacular.” Ibid. The famed

publisher William Tyndale “fled to the Continent to

publish his English translation and smuggled copies

into England from there.” Ibid. Many other individual

publishers, religious and otherwise, did similarly.

Ibid. For Tyndale, his new translation of the New

Testament into English would lead to exile from

England and ultimately being burned at the stake. 1

The Puritans opposed the Crown’s “scheme of royal

censorship,” launching a campaign led by John Milton

against press licensing in the 1640s. Id. at 559–60.

Yet still, even in colonial America, freedom of

speech for publishers was not always secure. For

instance, in 1733, John Peter Zenger created the New

York Weekly Journal, the first opposition newspaper

in the colonies. Livingston Rutherford, John Peter

Zenger: His Press, His Trial and A Bibliography of

Zenger Imprints 28 (1904). His publication included

essays by leading English libertarian philosophers, as

well as the popular Cato’s Letters that played a key

role in the American Revolution. “Zenger Trial,” The

Oxford Companion to United States History 858–59

(Paul S. Boyer ed., Oxford University Press 2001).

1 For this reason, Margaret Atwood has called him a “martyr[] for

‘free speech.’” Jemimah Steinfeld, Novel Lines, Index on

Censorship, July 2017, at 73, 73.

8

Zenger also used sarcasm, innuendo, and allegory to

ridicule New York’s British Governor. Id. at 858.

Because of these criticisms, Zenger was charged

with seditious libel. At trial, Zenger argued for

acquittal, not by denying that he had published the

materials at issue, but by arguing that the content of

what he published was true. He was acquitted by a

jury and would be the last colonial publisher to be

prosecuted by royal authorities. Ibid. Zenger’s trial

established that publishers would be free to criticize

the government, an important marker on the path to

the adoption of the First Amendment. Id. at 858–59.

The “exigencies of the colonial period” and “the

efforts to secure freedom from oppressive

administration” were part of the motivation for the

First Amendment. Near v. State of Minnesota ex rel.

Olson, 283 U.S. 697, 716–17 (1931). Against this

history, the rights to speak and to be free from

compelled speech have long been recognized as

encompassing the right to exercise editorial discretion

in fields that create and produce messages, including

publishing, broadcasting, and cable programming.

“[T]he free publication and dissemination of books and

other forms of the printed word furnish very familiar

applications of these constitutionally protected

freedoms.” Smith v. California, 361 U.S. 147, 150

(1959). This protection holds even if “the

dissemination takes place under commercial

auspices.” Ibid. Indeed, the publisher’s “economic

stake” in the speech can give it a particularly strong

interest in preventing “infringements of freedom of the

press” and speech. Bantam Books, 372 U.S. at 64 n.6;

accord Bigelow v. Virginia, 421 U.S. 809, 818 (1975);

Time, Inc. v. Hill, 385 U.S. 374, 397 (1967) (“That

books . . . are published and sold for profit does not

9

prevent them from being a form of expression whose

liberty is safeguarded by the First Amendment.”

(cleaned up)).

The same rule that protects publishers also

protects analogous entities that exercise editorial

discretion in conveying the speech of others. For

instance, the government cannot regulate a

newspaper’s “choice of material” or “the size and

content of the paper,” “whether fair or unfair.” Miami

Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258

(1974); see also Pittsburgh Press Co. v. Pittsburgh

Commission on Human Relations, 413 U.S. 376, 391

(1973). The same rule applies to broadcasters and

many others whose creative product constitutes

speech. E.g., Arkansas Education Television

Commission v. Forbes, 523 U.S. 666, 674 (1998)

(“When a public broadcaster exercises editorial

discretion in the selection and presentation of its

programming, it engages in speech activity.”); Turner

Broadcasting System, Inc. v. FCC, 512 U.S. 622, 636

(1994) (“Through original programming or by

exercising editorial discretion over which stations or

programs to include in its repertoire, cable

programmers and operators see[k] to communicate

messages on a wide variety of topics and in a wide

variety of formats.” (cleaned up)); Buehrle v. City of

Key West, 813 F.3d 973, 977 (CA11 2015) (“The First

Amendment protects the artist who paints a piece just

as surely as it protects the gallery owner who displays

it, the buyer who purchases it, and the people who

view it.”); Telescope Media Group v. Lucero, 936 F.3d

740, 750 (CA8 2019) (wedding videos “are a form of

speech”).

This protection for the exercise of editorial

discretion serves important public purposes. “Those

10

who won our independence had confidence in the

power of free and fearless reasoning and

communication of ideas to discover and spread

political and economic truth.” Thornhill v. Alabama,

310 U.S. 88, 95 (1940). Thus, “[i]t is the purpose of the

First Amendment to preserve an uninhibited

marketplace of ideas in which truth will ultimately

prevail.” FCC v. League of Women Voters of California,

468 U.S. 364, 377 (1984). And in that way, freedom of

speech and the press “will ultimately produce a more

capable citizenry and more perfect polity.” Cohen v.

California, 403 U.S. 15, 24 (1971). For that reason,

protecting editorial discretion “contribute[s] greatly to

the development and well-being of our free society and

its continued growth.” Smith, 361 U.S. at 155. But

because the temptation for any government to

suppress disliked speech is so strong, “[c]easeless

vigilance is the watchword to prevent” the erosion of

speech protections “by Congress or by the States.” Ibid.

II.

By sanctioning a violation of editorial

discretion, the decision below contradicts

this Court’s First Amendment precedents.

The First Amendment prohibits “[c]ompelling

individuals to mouth support for views they find

objectionable.” Janus v. American Federation of State,

County & Municipal Employees, Council 31, 138 S. Ct.

2448, 2463 (2018). “[T]he government, even with the

purest of motives, may not substitute its judgment as

to how best to speak for that of speakers and listeners.”

Riley v. National Federation of the Blind of North

Carolina, Inc., 487 U.S. 781, 791 (1988). The decision

below agreed that Ms. Smith’s editorial judgment in

designing wedding websites constitutes “pure speech”

protected by the First Amendment. App. 20a. And it

correctly acknowledged that “forc[ing]” Ms. Smith to

11

create a wedding website would amount to the

government compelling her to speak an “inherently

expressive” message that she “would otherwise

refuse.” App. 21a–23a. In fact, the “very purpose” of

the state law, according to the Tenth Circuit, is to

“excis[e] certain ideas or viewpoints from the public

dialogue.” App. 24a.

Yet the Tenth Circuit concluded that the First

Amendment allows the government to “excis[e]” Ms.

Smith’s speech because it dislikes the content of that

speech. That is incredible. No decision of this Court

supports that implausible reading of the First

Amendment, and many decisions refute it. The Tenth

Circuit invoked strict scrutiny, under which the

government must prove that its restriction is narrowly

tailored to a compelling government interest. But its

application of both parts of that test departs from this

Court’s precedents.

The Tenth Circuit agreed that “LGBT consumers

may be able to obtain wedding-website design services

from other businesses,” but it thought that other

services “will never be . . . the same quality and nature

as” Ms. Smith’s custom designs. App. 28a. In other

words, Ms. Smith is a monopolist who has cornered the

market for her own services. Thus, according to the

Tenth Circuit, Colorado’s restriction on Ms. Smith’s

speech is narrowly tailored to an interest in equal

access to public accommodations.

The First Amendment does not give way nearly so

easily, and that is why the Court has protected the

speech even of actual monopolists like energy and

cable companies. And it has repeatedly protected the

speech of speakers offering unique services against

public accommodations attacks. To excuse a First

12

Amendment violation on monopoly grounds for a

wedding website design twists the Court’s narrow

tailoring test beyond recognition. What’s more,

allowing the government to state a compelling interest

at a high level of generality—e.g., “equal access”—

misunderstands the demanding nature of the

government’s burden to justify violations of a

speaker’s constitutional rights. And it is doubtful that

the government’s interest, properly defined—access to

specific wedding website designers—is a pressing

public necessity of the highest order.

A. The Tenth Circuit’s narrow tailoring

analysis departs from this Court’s

precedents.

Though the Tenth Circuit held that Colorado’s

speech limitation was narrowly tailored because Ms.

Smith is a monopolist, this Court has repeatedly

rejected both premises of that holding. First, a speaker

is not a monopolist without First Amendment rights

simply because it provides unique speech. Second,

even actual monopolists do not give up their First

Amendment rights.

Start with this Court’s pathmarking decision in

Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, which recognized that statutes

preventing discrimination “do not, as a general matter,

violate” the First Amendment. 515 U.S. 557, 572

(1995). At issue was a St. Patrick’s Day parade

organized by the South Boston Allied War Veterans

Council, which decided to exclude a gay, lesbian, and

bisexual pride group from its annual parade. The

group sued based on the state’s public accommodations

law, and the Council defended based on the First

Amendment. See id. at 559–63.

13

Much like the statute here, the Massachusetts

statute in Hurley did not “on its face, target speech,”

but prevented “discriminating against individuals in

the provision of publicly available goods, privileges,

and services.” Id. at 572. But a First Amendment

problem arose because the statute was applied to

“essentially requir[e] petitioners to alter the

expressive content of their parade.” Id. at 572–73.

Though the state law characterized “the parade as a

place of public accommodation,” applying the statute

to the parade’s choice of participants “had the effect of

declaring the sponsors’ speech itself to be the public

accommodation.” Id. at 573. That was because of “the

expressive character of both the parade and the

marching GLIB contingent.” Ibid.

Under the decision below, the parade organizers

should have lost. After all, a certain parade is, by the

definition below, “unique,” and a group of people did

not have equal access to participate in this “unique”

parade. As this Court emphasized, the “success of [the

Council’s] parade makes it an enviable vehicle for the

dissemination” of opposing views. Id. at 578.

But, unlike the decision below, this Court did not

treat the uniqueness of speech as reason to eliminate

the speaker’s First Amendment rights. That the

parade was unique did not show that it “enjoy[s] an

abiding monopoly of access to spectators,” as the

parade does not have “the capacity to silence the voice

of competing [messages].” Id. at 577–78 (cleaned up).

Thus, the Court held that compelling the parade

organizers to accept the group would “violate[] the

fundamental rule of protection under the First

Amendment, that a speaker has the autonomy to

choose the content of his own message.” Id. at 573.

Though “the law is free to promote all sorts of conduct

14

in place of harmful behavior, it is not free to interfere

with speech for no better reason than promoting an

approved message or discouraging a disfavored one,

however enlightened either purpose may strike the

government.” Id. at 579.

If the speech restriction in Hurley was not narrowly

tailored to any equal-access interest, neither is

Colorado’s here. Indeed, for Ms. Smith (like amici

publishers), the protected nature of the speech “is even

clearer than in Hurley” because she “actively create[s]”

expression “rather than merely hosting” others’

content. App. 21a.

Likewise, in Boy Scouts of America v. Dale, this

Court rejected the argument that a State’s interest in

ensuring access to public accommodations superseded

a private entity’s First Amendment rights to

expressive association. 530 U.S. 640 (2000). There, the

Boy Scouts revoked Mr. Dale’s assistant scoutmaster

position when it learned that he was active in the

LGBT community. Id. at 644. He sued the Scouts for

violating New Jersey’s statute that “prohibit[ed]

discrimination on the basis of sexual orientation in

places of public accommodation.” Id. at 645.

Again, by the Tenth Circuit’s measure, the Scouts

offer a “unique” good or service. But that could not

justify “such a severe intrusion” on the Scouts’ First

Amendment rights. Id. at 642. Under the First

Amendment, the State could not “compel the

organization to accept members where such

acceptance would derogate from the organization’s

expressive message.” Id. at 659–61. As this Court

explained, “the First Amendment prohibits the State

from imposing . . . requirement[s] through the

application of its public accommodations laws” that

15

interfere with individuals’ First Amendment rights.

Id. at 659.

Even in the context of actual monopolies—i.e.,

companies in industries that face high fixed costs or

other barriers to entry—this Court has not stripped

monopolists of their First Amendment rights. For

instance, in Pacific Gas and Electric Co. v. Public

Utilities Commission of California, the Court held

“that the State cannot advance some points of view by

burdening the expression” of a regulated energy

company, for “monopoly [status] does not decrease” the

constitutional “value of its opinions.” 475 U.S. 1, 17

n.14, 20 (1986). And in Tornillo, the Court upheld the

freedom of the press against governmental

interference despite large media outlets’ “monopoly of

the means of communication.” 418 U.S. at 250; see id.

at 254–58. If speech restrictions are not narrowly

tailored even where actual monopolies are involved,

the restrictions here—in an industry with essentially

no barriers to entry—certainly are not.

As the dissent below well explained, the Tenth

Circuit’s understanding of narrow tailoring would

swallow the rule against compelled speech. Simply by

defining the relevant market for a particular service

as beginning and ending with a speaker’s custom

services, “the government could regulate the messages

communicated by all artists, forcing them to promote

messages approved by the government in the name of

‘ensuring access to the commercial marketplace.’” App.

80a (Tymkovich, C.J., dissenting). That reasoning

would “empty” the First Amendment’s protection for a

wide range of speakers, “for the government could

require [them] to affirm in one breath that which they

deny in the next.” Pacific Gas, 475 U.S. at 16. The

decision below conflicts with this Court’s precedents.

16

B. The Tenth Circuit’s understanding of

compelling

government

interests

contradicts this Court’s precedents.

Beyond the Tenth Circuit’s mangling of the narrow

tailoring test, its compelling interest analysis is also

dubious. A compelling government interest necessary

for strict scrutiny must be of the highest order. As this

Court has said, under strict scrutiny, “only the gravest

abuses, endangering paramount interest, give

occasion for permissible limitation.” Sherbert v.

Verner, 374 U.S. 398, 406 (1963) (cleaned up).

At least outside the national security context, it is

doubtful whether any government interest is of a

sufficiently high order to warrant a restriction (or

compulsion) of speech protected by the First

Amendment. Cf. Telescope Media, 936 F.3d at 755

(“[A]s compelling as the interest in preventing

discriminatory conduct may be, speech is treated

differently under the First Amendment.”). The

decision below found a compelling government interest

in “ensuring equal access” to “public accommodations.”

App. 26a (cleaned up). But this characterization

ignores that “public accommodations laws have

expanded” dramatically from “traditional places of

public accommodation.” Dale, 530 U.S. at 656.

Compare 42 U.S.C. § 2000a(b) (defining as public

accommodations lodgings, restaurants, and gas

stations), with Colo. Rev. Stat. Ann. § 24-34-601

(covering “any place of business engaged in any sales

to the public and any place offering services, facilities,

privileges, advantages, or accommodations to the

public”).

Though the Tenth Circuit cited Roberts v. U.S.

Jaycees, 468 U.S. 609 (1984), for an “equal access”

17

interest, App. 26a, the Court in Jaycees “went on to

conclude that the enforcement of the[] statute[] would

not materially interfere with the ideas that the

organization sought to express.” Dale, 530 U.S. at 657.

Thus, Jaycees does not answer the question of what

compelling government interests suffice to limit

protected speech, much less analyze the expansion of

public accommodations laws.

When

the

government

defines

“public

accommodations” so broadly as to encompass wedding

website designers, stating the relevant interest as

“equal access to public accommodations” is much too

general. The government may as well assert a

compelling interest in “equality” or “freedom.” “[B]ut

the First Amendment demands a more precise

analysis.” Fulton v. City of Philadelphia, 141 S. Ct.

1868, 1881 (2021). Thus, the Court’s precedents have

“narrowly restricted the interests that qualify as

compelling.” Parents Involved in Community Schools

v. Seattle School District No. 1, 551 U.S. 701, 766 n.15

(2007) (Thomas, J., concurring) (rejecting “[t]he notion

that a ‘democratic’ interest qualifies as a compelling

interest”); see, e.g., NAACP v. Button, 371 U.S. 415,

438–39 (1963) (rejecting Virginia’s “attempt to equate”

the NAACP’s litigation activities with prohibited legal

activities and thereby define the relevant government

interest at a high level). 2

Properly defined, Colorado’s only interest here is in

equal access to a speaker’s expression (in this case,

expression by a wedding website designer). And that

is simply not a compelling government interest. If

2 Colorado’s “systems of exceptions” to its provision only confirms

that no compelling government interest is at issue. Fulton, 141 S.

Ct. at 1882; see Colo. Rev. Stat. Ann. § 24-34-601(3) (allowing sex

discrimination in some cases); Pet. 26–28.

18

“combatting juvenile delinquency” is not a compelling

government interest, Bantam Books, 372 U.S. at 76

(Harlan, J., dissenting), neither is ensuring access to a

speaker’s expression, including a particular wedding

website designer. No one could call that a “pressing

public necessity.” Grutter v. Bollinger, 539 U.S. 306,

351 (2003) (Thomas, J., concurring in part and

dissenting in part).

If the Tenth Circuit was right to characterize the

relevant government interest at such a high level of

generality, then this Court should reconsider the

“balancing tests” involved in the tiers of scrutiny,

invented in the 1950s and 1960s. See Heller v. District

of Columbia, 670 F.3d 1244, 1280–81 (CADC 2011)

(Kavanaugh, J., dissenting). The State here violated

the First Amendment because it seeks to compel

protected speech. No historical evidence supports the

proposition that this constitutional violation is

excused if the government comes up with a good

enough reason. “The First Amendment itself reflects a

judgment by the American people that the benefits of

its restrictions on the Government outweigh the costs.”

Id. at 1283 (quoting United States v. Stevens, 559 U.S.

460, 470 (2010)). Nor do the Court’s longstanding

“precedents and traditions” allow States to “censor

speech whenever they believe there is a compelling

justification for doing so.” Simon & Schuster, Inc. v.

Members of New York State Crime Victims Board, 502

U.S. 105, 125 (1991) (Kennedy, J., concurring in the

judgment). As Justice Black put it:

What are the ‘more important’ interests for the

protection of which constitutional freedom of

speech and press must be given second place?

What is the standard by which one can

determine when abridgment of speech and

19

press goes ‘too far’ and when it is slight enough

to be constitutionally allowable? Is this

momentous decision to be left to a majority of

this Court on a case-by-case basis? What

express provision or provisions of the

Constitution put freedom of speech and press in

this precarious position of subordination and

insecurity?

Smith, 361 U.S. at 157 (concurring opinion); cf.

Williams-Yulee v. Florida Bar, 575 U.S. 433, 475

(2015) (Kennedy, J., dissenting) (“Although States

have a compelling interest in seeking to ensure the

appearance and the reality of an impartial judiciary, it

does not follow that the State may alter basic First

Amendment principles in pursuing that goal.”).

In sum, the decision below erred in defining the

government

interest

too

broadly,

and

in

transmogrifying the narrow tailoring test to

encompass every creative speaker. And if those were

not errors, then the decision below fell into the trap set

by this Court of “using made-up tests to displace

longstanding national traditions as the primary

determinant of what the Constitution means.” Whole

Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2327

(2016) (Thomas, J., dissenting) (cleaned up). Either

way, this Court’s review is necessary.

III.

The decision below would allow the

government

to

suppress

disfavored

speech.

Publishers—who create expression by conveying

certain speech—play an integral role in contributing

to the marketplace of ideas. Just as Ms. Smith uses her

own creative judgment in crafting messages for others,

amici and other publishers routinely decide whether

20

and how to convey the speech of others. Their choices

in curation, style, and content convey important

messages to the public about their values and beliefs.

As discussed, that is why this Court has repeatedly

“reaffirm[ed] unequivocally the protection afforded to

editorial judgment and to the free expression of views

on these and other issues, however controversial.”

Pittsburgh Press, 413 U.S. at 391.

The decision below would nullify this protection. If

a state non-discrimination commission can force Ms.

Smith to create or share messages with which she

disagrees, then it can do the same for publishers. So

too can it prohibit publishers from even explaining

their views publicly. Publishers would face contentbased restrictions on speech that would force them to

violate their principles or cease operation. The

concomitant disruption to speech will reduce ideas

available to a free society—especially ideas that may

deviate from the governmental or societal orthodoxy.

Official suppression of disfavored ideas would be the

result. Absent review, these consequences would be

stark.

First, the rule announced below would infringe on

the “individual dignity and choice” promised by the

First Amendment. Cohen, 403 U.S. at 24. The Tenth

Circuit’s approach would force a publisher to publish

speech with which it fundamentally disagrees. The

government could force a Christian publisher to print

tracts that attack Christianity, a feminist publisher to

publish literature opposed to women’s rights, and a

liberal publisher to propound conservative views. Cf.

D.C. Code § 2-1402.01 (including “political affiliation”

as a protected class). Or it could assert some interest

in fairness or accuracy and prevent alleged

“disinformation” or compel equal airtime. An essential

21

element of the freedom to speak would be eviscerated.

Being compelled to speak is even more “damag[ing]”

than other speech regulations, for “[i]n that situation,

individuals are coerced into betraying their

convictions.” Janus, 138 S. Ct. at 2464.

Not only would speakers be silenced or coerced, the

rights of consumers who rely on and share the

speakers’ viewpoints would be diluted too. For

instance, many depend on the works published by

amici for devotion, worship, and deepening their faith.

If amici are coerced into speech they do not believe or

silenced, those who find sustenance in amici’s works

suffer constitutional harm too. For the First

Amendment’s protection of the freedom of speech

encompasses the “right to receive information and

ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969);

see also Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748, 756

(1976) (“[T]he protection afforded is to the

communication, to its source and to its recipients

both.”).

Second, the rule announced below would “dampen[]

the vigor and limit[] the variety of public debate,”

threatening an underlying premise of the First

Amendment: that a vibrant marketplace of ideas will

lead to the truth. Tornillo, 418 U.S. at 257. How

publishers involved in disseminating third-party

speech exercise their editorial discretion, and the

values and goals that inform their decisions about

messaging, go to the heart of defining how any one

publisher is different from another. Stamping out

speech based on its content would eliminate a slice of

the spectrum of ideas that contributes to society’s

“search for truth.” Janus, 138 S. Ct. at 2464. And if the

decision below does not make a monopolist of

22

everyone, it puts the speech of unique, skilled, or

innovative publishers at special risk of censorship. See

App. 28a (“Appellants’ unique services are, by

definition, unavailable elsewhere.”). Publishers would

be incentivized to select, to edit, to publish—to speak—

in a generic way. Innovation and ingenuity would be

punished. And consumers would suffer.

Third, the rule below would influence speech in a

particularly dangerous way: censoring disfavored

speech. How easy it would be for government

commissions to characterize much speech as

“arguably” implicating classifications in nondiscrimination laws, App. 13a, thereby ensnaring any

publisher that dares print a controversial viewpoint.

At minimum, the government can drag the offending

speaker through years of litigation. At maximum, it

can stamp out disfavored speech, terminate the

speaker’s business, and destroy the speaker’s personal

livelihood. Cf. State v. Arlene’s Flowers, Inc., 441 P.3d

1203, 1237 (Wash. 2019) (imposing personal liability

on speaker of disfavored views). For that reason, the

Tenth Circuit’s view—that its decision would somehow

promote “a free and open economy”—strains credulity.

App. 26a.

Fourth and relatedly, speech critical of the

government is especially likely to be targeted for

suppression. Because “informed public opinion is the

most potent of all restraints upon misgovernment,”

“[t]he durability of our system of self-government

hinges upon the preservation of these freedoms” of

speech and the press. Pittsburgh Press, 413 U.S. at

382. Government efforts to censor critical speech are

not new. See, e.g., Ex parte Vallandigham, 68 U.S. 243,

244 (1863) (noting that a citizen of Ohio was charged

for publicly criticizing the Civil War as “wicked, cruel,

23

and unnecessary”); New York Times Co. v. Sullivan,

376 U.S. 254, 274 (1964) (discussing the 1798 Sedition

Act, which criminalized “any false, scandalous and

malicious writing or writings against the government

of the United States”). But the decision below would

give the government a potent new weapon to use

against speech that criticizes it.

The decision below threatens the basic freedoms of

amici and all similar organizations, and all Americans

who rely on publishers for learning, devotion, and

faith. By threatening the freedom of editorial

discretion, the decision undermines one of this

Nation’s central constitutional promises: that citizens

may think and speak for themselves. Review is

urgently needed.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street #22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amici Curiae

OCTOBER 28, 2021