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; CHARLES GARCIA; AJAY MENON;

MIGUEL RENE ELIAS; RICHARD LEWIS;

KENDRA ANDERSON; SERGIO CORDOVA;

JESSICA POCOCK; PHIL WEISER, RESPONDENTS

__________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

__________

BRIEF FOR LAW AND ECONOMICS

SCHOLARS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

__________

ANDREW C. NICHOLS

Charis Lex P.C.

4250 N. Fairfax Dr.,

Ste. 600

Arlington, VA 22203

(571) 549-2645

anichols@charislex.com

SEAN P. GATES

Counsel of Record

Charis Lex P.C.

301 N. Lake Ave.

Ste. 1100

Pasadena, CA 91101

(626) 508-1715

sgates@charislex.com

Counsel for Amici Curiae

QUESTION PRESENTED

Whether applying a public-accommodation law to

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

artist’s sincerely held religious beliefs, on the theory

that creative professionals are per se monopolists, violates the First Amendment.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

SUMMARY OF ARGUMENT AND INTEREST OF

AMICI CURIAE ........................................................... 1

STATEMENT OF THE CASE..................................... 2

REASONS FOR GRANTING THE PETITION .......... 4

I.

Review is needed because the decision below

flouts basic economics and will chill the speech of

creative professionals. ........................................... 4

A. The decision below defies economics as

articulated in this Court’s precedents. ........... 5

B. The decision below would justify compelling

speech from any creative professional who

serves the public. ............................................ 9

II. Review is needed to clarify that the government

may not compel speech from creative

professionals even if their “unique” products are

considered a “monopoly” in some sense. ............. 13

CONCLUSION .......................................................... 15

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Brown Shoe Co. v. United States,

370 U.S. 294 (1962) .................................................. 5

Brush & Nib Studios, LC v. City of Phx.,

448 P.3d 890 (Ariz. 2019) ......................................... 9

Cent. Hudson Gas & Elec. Corp. v.

Pub. Serv. Comm’n,

447 U.S. 557 (1980) ................................................ 14

Chelsey Nelson Photography LLC v.

Louisville/Jefferson Cty. Metro Gov’t,

479 F. Supp. 3d 543 (W.D. Ky. 2020) .................... 12

Consol. Edison Co. v. Pub. Serv. Comm’n,

447 U.S. 530 (1980) ................................................ 14

DSM Desotech Inc. v. 3D Sys. Corp.,

749 F.3d 1332 (Fed. Cir. 2014) ................................ 6

Eastman Kodak Co. v. Image Tech. Servs.,

504 U.S. 451 (1992) .................................................. 8

Hack v. President & Fellows of Yale Coll.,

237 F.3d 81 (2d Cir. 2000)........................................ 7

Hurley v. Irish-Am. Gay, Lesbian and Bisexual Grp.

of Boston,

515 U.S. 557 (1995) .................................................. 7

Ill. Tool Works Inc. v. Indep. Ink, Inc.,

547 U.S. 28 (2006) .................................................... 6

iv

LifeWatch Servs. v. Highmark Inc.,

902 F.3d 323 (3d Cir. 2018)...................................... 6

Miami Herald Pub. Co., Div. of Knight Newspapers,

Inc. v. Tornillo,

418 U.S. 241 (1974) ................................................ 13

Ohio v. Am. Express Co.,

138 S. Ct. 2274 (2018) .............................................. 6

Pac. Gas & Elec. Co. v. Pub. Utils. Com.,

475 U.S. 1 (1986) .................................................... 14

Pepsico, Inc. v. Coca-Cola Co.,

315 F.3d 101 (2d Cir. 2002)...................................... 7

Queen City Pizza v. Domino’s Pizza,

124 F.3d 430 (3d Cir. 1997)...................................... 7

Right Field Rooftops, LLC v.

Chi. Baseball Holdings, LLC,

87 F. Supp. 3d 874 (N.D. Ill. 2015) .......................... 7

Roberts v. United States Jaycees,

468 U.S. 609 (1984) .................................................. 3

Rock River Communs., Inc. v.

Universal Music Group, Inc.,

2011 U.S. Dist. LEXIS 46023

(C.D. Cal. 2011) ........................................................ 8

Subsolutions, Inc. v. Doctor’s Ass’n,

62 F. Supp. 2d 616 (D. Conn. 1999) ......................... 7

Tanaka v. Univ. of S. Cal.,

252 F.3d 1059 (9th Cir. 2001) .................................. 7

v

Telescope Media Grp. v. Lucero,

936 F.3d 740 (8th Cir. 2019) .................................... 9

Theatre Party Ass’n, Inc. v. Shubert Org., Inc.,

695 F. Supp. 150 (S.D.N.Y. 1988) ............................ 8

Turner Broad. Sys. v. FCC,

512 U.S. 622 (1994) ................................................ 15

United States v. Cont’l Can Co.,

378 U.S. 441 (1964) .................................................. 5

United States v. E. I. du Pont de Nemours & Co.,

351 U.S. 377 (1956) .............................................. 5, 6

United States v. Grinnell Corp.,

384 U.S. 563 (1966) .................................................. 5

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ................................................ 15

Walker Process Equip., Inc. v.

Food Mach. & Chem. Corp.,

382 U.S. 172 (1965) .................................................. 6

Wooley v. Maynard,

430 U.S. 705 (1977) .................................................. 2

Statutes and Ordinances

Ann Arbor, Mich., Code of Ordinances

§§ 9:151, 9:153........................................................ 10

Broward County, Fla., Code of Ordinances

§§ 16½-3, 16½-34 ................................................... 10

Champaign, Ill., Code of Ordinances

§ 17-3, 17-56 ............................................................ 10

vi

City of College Park, MD, Charter

§ C1-2 ..................................................................... 10

D.C. Code

§§ 2-1401.02(25), 2-1402.31(a)............................... 10

Ft. Lauderdale, Fla., Code of Ordinances

§§ 29-2, 29-16 ......................................................... 10

Harford County, Md., Code of Ordinances

§§ 95-3, 95-5 ........................................................... 10

Howard County, Md., Code of Ordinances

§ 12.210 .................................................................. 10

Lansing, Mich., Code of Ordinances

§§ 297.02, 297.04.................................................... 10

Madison, Wisc., Mun. Code

§§ 39.03(1), 39.03(5) ............................................... 10

Miami Beach, Fla., Code of Ordinances

§§ 62-31, 62-87 ....................................................... 10

Orange County, N.C., Code of Ordinances

§§ 12-52, 12-54 ....................................................... 10

Seattle, Wash., Mun. Code

§§ 14.06.020, 14.06.030 ........................................... 10

Shreveport, La., Code of Ordinances

§§ 39-1, 39-2 ............................................................ 10

Sun Prairie, Wisc., Code of Ordinances

§ 9.21.020 ................................................................ 10

Urbana, Ill., Code of Ordinances

§§ 12-39, 12-63 ...................................................... 11

vii

Wayne County, Mich., Ordinance No. 2020-586 ...... 10

Other Authorities

1 Herbert Hovenkamp, Mark Janis & Mark Lemley,

IP and Antitrust (2005 Supp.) ................................. 6

Alex Heigl, The Many, Many Musicians Who Have

Told Politicians to Stop Using Their Songs,

People Magazine (Oct. 11, 2019)

https://perma.cc/U2EB-WLQ8 ............................... 12

Amanda Gorman

https://perma.cc/T9KE-ULAK ............................... 11

Charles Stockdale & John Harrington, 35 musicians

who famously told politicians: Don’t use my song,

USA Today (July 16, 2018)

https://perma.cc/5R6M-Q7LT ................................ 12

History of Coca-Cola Advertising Slogans

https://perma.cc/M2FU-UCXM ................................ 7

Jason Rantz, Seattle bar tried to deny service to

Republicans celebrating Kavanaugh,

770 KTTH (Oct. 8, 2018)

https://perma.cc/LPF5-ZL8K. ................................ 11

Laura Snapes, Tom Petty estate issues cease and

desist over Trump’s use of song,

The Guardian (June 21, 2020)

https://perma.cc/DE7H-GPEZ ................................ 12

Lauren Dukoff, Amanda Gorman Talks Writing, the

Power of Change and Her Own Presidential

Aspirations, Variety Magazine

https://perma.cc/QEP2-MSWW.............................. 11

viii

Mikal Gilmore, The Life and Times of Bob Marley:

How he changed the world,

Rolling Stone (Mar. 10, 2005)

https://perma.cc/SK9L-JS3T .................................... 8

Phillip E. Areeda & Herbert Hovenkamp,

Antitrust Law (3d. ed. 2007) .................................... 6

The Poetry Society of New York

https://perma.cc/WZ5K-MK4W .............................. 11

SUMMARY OF ARGUMENT

AND INTEREST OF AMICI CURIAE 1

This case presents a pressing question at the intersection of antidiscrimination laws and free-speech

rights: Does a state interest in equal access to public

accommodations justify compelling speech from creative professionals by deeming them monopolists?

The court below said yes, when the speech is the

product of an individual’s “unique creative talents.”

Despite recognizing such products as “pure speech,”

the court held that compulsion is justified to ensure a

“free and open economy.” According to the court, even

if consumers can obtain similar products from thousands of other providers, because such products are

the creation of an individual’s talents, each is “unique”

and not “fungible.” The court thus reasoned that each

creative individual enjoys a monopoly, and their

speech may be compelled to ensure that protected classes may access “monopoly” markets.

This definition of monopoly is unprecedented. As

this Court has long recognized, under fundamental

economic principles, there is no monopoly where there

are market alternatives. And those alternatives (i.e.,

substitutes) may differ. They need not be fungible but

only “reasonably interchangeable.” Or, in economic

terms, the products need only have cross-elasticity of

demand. The court below thus created a unique definition of monopoly just to compel speech.

1 No party or counsel for a party authored this brief in whole

or in part. No one other than Amici or their counsel made

a monetary contribution to preparing or submitting this

brief. Amici gave timely notice and each of the parties has

consented to the filing of this amicus brief.

2

The combination of the court’s unique-equals-monopoly fallacy and the expansive protected categories

under many antidiscrimination laws gives local government authorities carte blanche to force creative

professionals to speak on diverse topics. Here, the

State’s interest in ensuring access to services justified

compelling a creative professional, despite her religious convictions, to “create speech that celebrates

same-sex marriages.” Other protected categories, such

as “political affiliation” and “political opinion,” for example, will expose creative professionals to compelled

speech violating their political views.

That result is squarely at odds with this Court’s

First Amendment jurisprudence. Indeed, in the cases

of newspapers and public utilities, the presence of actual monopoly cannot justify requiring entities to “foster” “religious, political, and ideological causes.”

Wooley v. Maynard, 430 U.S. 705, 714 (1977).

If allowed to stand, the decision below will not only

chill speech, but it will result in fewer creative professionals offering their services to the public. That is not

in the interests of the marketplace of ideas or the marketplace for goods and services.

Amici curiae, listed in the Appendix, are scholars

in law, economics, and philosophy who study, teach,

and have published on the application of economic

principles to the law and to public policy. Amici submit this brief to bring to the Court’s attention the

flawed economic reasoning of the court below, which

will chill speech and diminish social welfare.

STATEMENT OF THE CASE

Lorie Smith is a website designer. She is the sole

owner of 303 Creative, which is one of hundreds of

website design companies in her local area and

3

thousands nationwide. Pet. 6a, 190a. Smith is willing

to work with all people, regardless of “race, creed, sexual orientation, [or] gender.” Id. at 11a–12a. She is

therefore willing to create “custom graphics and websites for gay, lesbian, or bisexual clients.” Id. at 12a.

Smith desires to use her talents to create wedding

websites. Pet. 186a–187a. But it would violate her

“sincerely held religious beliefs to create a wedding

website for a same-sex wedding” because, by doing so,

she “would be expressing a message celebrating and

promoting a conception of marriage” contrary to her

beliefs. Id. at 189a.

Because Colorado law prohibits places of public accommodation from refusing to provide services because of “sexual orientation” (Colo. Rev. Stat. § 24-34601(2)(a)), Smith brought a lawsuit to determine

whether she could offer wedding-website design services but decline to offer such services for same-sex

weddings. Pet. 7a. The district court said no and entered summary judgment against Smith. Id. at 8a.

The Tenth Circuit held that Smith had standing,

her “creation of wedding websites is pure speech,” and

that the Colorado antidiscrimination law would compel Smith “to create speech that celebrates same-sex

marriages.” Pet. 9a–19a, 20a, 22a.

The circuit court nevertheless held that the State

could compel Smith to speak against her religious convictions to ensure “‘equal access to publicly available

goods and services.’” Pet. 26a (quoting Roberts v.

United States Jaycees, 468 U.S. 609, 624 (1984)). According to the court, compulsion is needed because

“[t]his case does not present a competitive market.” Id.

at 29a. Although “LGBT consumers may be able to obtain wedding-website design services from other

4

businesses,” the court held that the State has a compelling interest in forcing Smith to express ideas contrary to her religious beliefs because her services are

“unique,” “inherently not fungible,” and “by definition,

unavailable elsewhere.” Id. at 28a.

In short, the court held that compelling Smith to

speak in support of same-sex marriage was justified

because Smith is, in effect, “a monopoly.” Pet. 29a. According to the court, the “product at issue is not merely

‘custom-made wedding websites,’ but rather ‘custommade wedding websites of the same quality and nature

as those made by [Smith].’” Ibid. “In that market, only

[Smith] exist[s].” Ibid. If Smith were not compelled to

employ her “unique creative talents” to express ideas

anathema to her religious beliefs, LGBT consumers

would be relegated “to an inferior market.” Id. at 21a,

28a.

REASONS FOR GRANTING THE PETITION

I. Review is needed because the decision below

flouts basic economics and will chill the

speech of creative professionals.

The lower court justified its compulsion of speech

by relying on the State’s interest in keeping a “free and

open economy.” Pet. 26a. But the court’s reasoning

perverts the very economic concepts on which it relies.

The court recognized that LGBT consumers could obtain wedding-website design services from businesses

other than Smith’s. Id. at 28a. Indeed, the record

shows that Smith competes with hundreds of local

web-design companies and thousands nationwide.

Pet. 190a. Yet the court held that the relevant market

was not competitive; Smith is a monopolist; and compelling her to speak in favor same-sex weddings is

5

justified because Smith’s web-design services were

“unique” and “not fungible.” Id. at 28a.

This reasoning dangerously misconstrues economics, competition, and monopoly. If not corrected, it will

chill speech in many professions and reduce marketplace alternatives.

A. The decision below defies economics as articulated in this Court’s precedents.

What defines a monopoly is not the uniqueness of a

product or service but a lack of alternatives. As this

Court put it, “[w]hen a product is controlled by one interest, without substitutes available in the market,

there is monopoly power.” United States v. E. I. du

Pont de Nemours & Co., 351 U.S. 377, 394 (1956) (emphasis added); see also Nat’l Collegiate Athletic Ass’n

v. Bd. of Regents, 468 U.S. 85, 112 (1984) (same). But

so long as “there are market alternatives that buyers

may readily use,” a “monopoly does not exist merely

because the product said to be monopolized differs

from others.” du Pont, 351 U.S. at 394.

Thus, contrary to the decision below, alternatives

needn’t be “identical” or “fungible.” du Pont, 351 U.S.

at 394 (substitutes not limited to “identical products”);

see also United States v. Cont’l Can Co., 378 U.S. 441,

449 (1964) (substitutes need not be “fungible”). Rather, the test is whether products or services are “reasonably interchangeable.” United States v. Grinnell

Corp., 384 U.S. 563, 571 (1966). In economic terms, a

product is a substitute if there is “cross-elasticity of demand between the product itself and substitutes for

it.” Brown Shoe Co. v. United States, 370 U.S. 294, 325

(1962).

Under this test, courts combine “different products

or services into ‘a single market’ when ‘that

6

combination reflects commercial realities.’” Ohio v.

Am. Express Co., 138 S. Ct. 2274, 2285 (2018). In other

words, consistent with commercial realities, products

and services that are unique—i.e., differentiated—

may still be reasonably interchangeable. E.g.,

LifeWatch Servs. v. Highmark Inc., 902 F.3d 323, 339

(3d Cir. 2018) (“differentiation is often present among

competing products in the same market”); DSM Desotech Inc. v. 3D Sys. Corp., 749 F.3d 1332, 1339–1340

(Fed. Cir. 2014) (“When products are not identical or

fungible, they still may be in the same market as differentiated products.”); Phillip E. Areeda & Herbert

Hovenkamp, Antitrust Law, ¶563a at 383–384 (3d. ed.

2007) (“Many machines performing the same function—such as copiers, computers, or automobiles—differ not only in brand name but also in performance,

physical appearance, size, capacity, cost, price, reliability, ease of use, service, customer support, and other

features. Nevertheless, they generally compete with

one another[.]”).

Indeed, products may have substitutes even when

recognized as unique by the government’s grant of a

trademark or patent. E.g., du Pont, 351 U.S. at 393

(substitutes may exist for trademarked products);

Walker Process Equip., Inc. v. Food Mach. & Chem.

Corp., 382 U.S. 172, 178 (1965) (“[t]here may be effective substitutes” for a patented product); see also Ill.

Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 45–46

(2006) (“a patent does not necessarily confer market

power upon the patentee”); id. at 43 n.4 (“‘[C]overage

of one’s product with an intellectual property right

does not confer a monopoly’”) (quoting 1 Herbert

Hovenkamp, Mark Janis & Mark Lemley, IP and Antitrust § 4.2a (2005 Supp.)).

7

Simply put, unique does not equal monopoly. It

may be that “The Only Thing Like Coca-Cola is CocaCola Itself,” 2 but Coca-Cola is not a monopoly. Pepsico,

Inc. v. Coca-Cola Co., 315 F.3d 101, 107 (2d Cir. 2002).

An education from Yale is undoubtedly “unique,” but

Yale is not a monopoly; other prestigious universities

are substitutes. Hack v. President & Fellows of Yale

Coll., 237 F.3d 81, 86 (2d Cir. 2000). And the UCLA

women’s soccer program may be “unique,” but it competes with other programs for student-athletes, and

the programs are thus “interchangeable.” Tanaka v.

Univ. of S. Cal., 252 F.3d 1059, 1063–1064 (9th Cir.

2001).

Indeed, courts across the country have rejected the

unique-equals-monopoly fallacy. See, e.g., Queen City

Pizza v. Domino’s Pizza, 124 F.3d 430, 438 (3d Cir.

1997) (no monopoly market for pizza ingredients and

supplies “approved by Domino’s Pizza, Inc. for use by

Domino’s franchisees”); Right Field Rooftops, LLC v.

Chi. Baseball Holdings, LLC, 87 F. Supp. 3d 874, 886–

887 (N.D. Ill. 2015) (live Cubs baseball games at

Wrigley field not a monopoly market); Subsolutions,

Inc. v. Doctor’s Ass’n, 62 F. Supp. 2d 616, 625 (D. Conn.

1999) (market could not be limited to Subway franchises). And this Court essentially did so as well in the

context of compelled free speech. Hurley v. Irish-Am.

Gay, Lesbian and Bisexual Group of Boston, 515 U.S.

557, 577–578 (1995) (“True, the size and success of petitioners’ parade makes it an enviable vehicle for the

dissemination of GLIB’s views, but that fact, without

more, would fall far short of supporting a claim that

History

of

Coca-Cola

https://perma.cc/M2FU-UCXM.

2

Advertising

Slogans,

8

petitioners enjoy an abiding monopoly of access to

spectators.”).

Products produced by artists and other creative

professionals, including world-famous artists, are no

different. E.g., Theatre Party Ass’n, Inc. v. Shubert

Org., Inc., 695 F. Supp. 150, 155 (S.D.N.Y. 1988) (tickets to Phantom of the Opera not a monopoly market).

Even the unique, and some say world-changing, music

of the iconoclastic Bob Marley is not a monopoly; it

competes with other reggae music. See Rock River

Communs., Inc. v. Universal Music Grp., Inc., 2011

U.S. Dist. LEXIS 46023 *47 (C.D. Cal. 2011); Mikal

Gilmore, The Life and Times of Bob Marley: How he

changed the world, Rolling Stone (Mar. 10, 2005) (describing Marley’s body of music as “unlike any other

we’ve ever known” and his lyrical talent as “like nobody before or since”), https://perma.cc/SK9L-JS3T.

This is not to say that a unique product can never

be a monopoly. This Court has recognized that in certain circumstances, the market for replacement parts

for a specific brand of durable good may be monopolized. Eastman Kodak Co. v. Image Tech. Servs., 504

U.S. 451, 482 (1992).

But no such circumstances exist here. Smith’s

“unique services are, by definition, unavailable elsewhere.” Pet. 28a (emphasis original). But given the

availability of hundreds, if not thousands, of alternative website-design services, it cannot be said that

compelling Smith to speak in support of same-sex weddings is necessary to ensure “access to the marketplace.” Ibid.

9

B. The decision below would justify compelling speech from any creative professional

who serves the public.

The lower court’s holding is not just wrong, it is

dangerous. The court’s reasoning will chill speech in a

wide variety of professions. All that is needed to justify compulsion is that the products or services be

“unique” in some sense. And those affected are not

limited to religiously motivated speakers.

Most obviously, the court’s holding means that antidiscrimination laws may be used to compel speech

from religious creative professionals offering services

to the public. According to the logic of the court below,

any product or service resulting from “creative talents”

will be “unique” and “by definition, unavailable elsewhere,” justifying compulsion. Pet. 21a, 28a. Thus,

“the State could wield [antidiscrimination laws] as a

sword, forcing an unwilling Muslim movie director to

make a film with a Zionist message or requiring an

atheist muralist to accept a commission celebrating

Evangelical zeal.” Pet. 69a (Tymkovich, C.J., dissenting). Religious videographers and calligraphers could

be compelled to create speech that violates their religious convictions. See Pet. 30a (agreeing that custom

wedding invitations are “speech” but disagreeing with

the holding in Brush & Nib Studios, LC v. City of Phx.,

448 P.3d 890, 916 (Ariz. 2019), that antidiscrimination

laws cannot be used to compel such speech); Telescope

Media Grp. v. Lucero, 936 F.3d 740, 758 (8th Cir. 2019)

(holding that a state antidiscrimination law “interferes with [videographers’] message by requiring them

to say something they otherwise would not”).

10

But the breadth of the circuit court’s holding is not

limited to sweeping aside religious convictions. It will

sweep aside political convictions, as well.

Many county and municipal public accommodation

ordinances, as well as the District of Columbia Code,

prohibit discrimination based on political opinion or

affiliation. 3 And such laws have been used to require

3 E.g., D.C. Code §§ 2-1401.02(25), 2-1402.31(a) (“political

affiliation”); Broward County, Fla., Code of Ordinances

§§ 16½-3, 16½-34 (“political affiliation”); Orange County,

N.C., Code of Ordinances §§ 12-52, 12-54 (“political affiliation”); Harford County, Md., Code of Ordinances §§ 95-3,

95-5 (“political opinion”) Howard County, Md., Code of Ordinances § 12.210 (“political opinion”); Wayne County,

Mich., Ordinance No. 2020-586 (“political affiliation”); Ann

Arbor, Mich., Code of Ordinances §§ 9:151, 9:153 (“political

beliefs,” which includes a person’s “opinion, whether or not

manifested in speech or association, concerning the social,

economic, and governmental structure of society and its institutions”); Champaign, Ill., Code of Ordinances § 17-3, 1756 (“political affiliation,” which includes “belonging to or endorsing any political party or organization or taking part in

any activities of a political nature”); City of College Park,

MD, Charter § C1-2 (“political affiliation”); Ft. Lauderdale,

Fla., Code of Ordinances §§ 29-2, 29-16 (“political affiliation”); Lansing, Mich., Code of Ordinances §§ 297.02, 297.04

(“political affiliation or belief”); Madison, Wisc., Mun. Code

§§ 39.03(1), 39.03(5) (“political beliefs”); Miami Beach, Fla.,

Code of Ordinances §§ 62-31, 62-87 (“political affiliation,”

which includes “ideological support of or opposition to … to

an organization or person which is engaged in supporting

or opposing candidates for public office …”); Seattle, Wash.,

Mun. Code §§ 14.06.020, 14.06.030 (“political ideology”);

Shreveport, La., Code of Ordinances §§ 39-1, 39-2 (“political … affiliations”); Sun Prairie, Wisc., Code of Ordinances

11

proprietors to open their venues for politically charged

events. See, e.g., Jason Rantz, Seattle bar tried to deny

service to Republicans celebrating Kavanaugh, 770

KTTH (Oct. 8, 2018), https://perma.cc/LPF5-ZL8K.

Under the lower court’s reasoning, it doesn’t take

much imagination to realize the broad scope of professionals whose speech could be compelled. Just think

of artists such as Amanda Gorman, the poet for the

most recent presidential inaugural, whose work reflects her convictions concerning “the world’s social

ills, be it racism, sexism, police brutality, the climate

crisis, human trafficking or animal cruelty.” Lauren

Dukoff, Amanda Gorman Talks Writing, the Power of

Change and Her Own Presidential Aspirations, Variety Magazine, https://perma.cc/QEP2-MSWW. Ms.

Gorman has written several commissioned poems. See

Amanda Gorman, https://perma.cc/T9KE-ULAK. Under the circuit court’s reasoning, given that she offers

her services to the public, what would stop a county or

municipality from requiring Ms. Gorman to accept a

commission for a poem supporting political opinions

contrary to her own?

Perhaps a court would find that Ms. Gorman has

not accepted sufficient commissions to be a public accommodation. But what about the Poetry Society of

New York, which offers commissioned poetry to the

public and even provides poets for “public events, private parties, and commercial environments”? The Poetry Society of New York, https://perma.cc/WZ5KMK4W.

§ 9.21.020 (“political affiliation”); Urbana, Ill., Code of Ordinances §§ 12-39, 12-63 (“political affiliation”).

12

Or take the many famous musicians who have refused to allow political candidates to use their music

for campaigns but license it for other purposes, such as

commercials. See Alex Heigl, The Many, Many Musicians Who Have Told Politicians to Stop Using Their

Songs, People Magazine (Oct. 11, 2019) (chronicling

refusals by Rihanna, Bruce Springsteen, John Mellencamp, Bobby McFerrin, Tom Petty, Sting, and others),

https://perma.cc/U2EB-WLQ8. Many of these artists

freely explain their reasons for such refusals: disagreement with the candidate’s political views or affiliation.

See, e.g., Laura Snapes, Tom Petty estate issues cease

and desist over Trump’s use of song, The Guardian

(June 21, 2020), https://perma.cc/DE7H-GPEZ;

Charles Stockdale & John Harrington, 35 musicians

who famously told politicians: Don’t use my song, USA

Today (July 16, 2018), https://perma.cc/5R6M-Q7LT.

These refusals would be unlawful under the circuit

court’s reasoning. After all, according that court,

“unique goods and services are where public accommodation laws are most necessary to ensuring equal access.” Pet. 30a.

These examples are not far-fetched. For instance,

one municipality has already taken the position that

the “First Amendment would not stop a government

from compelling a freelance speechwriter * * * ‘to provide that service to the climate change deniers’ even if

she wants to work only for environmentalist causes.”

Chelsey Nelson Photography LLC v. Louisville/Jefferson Cty. Metro Gov’t, 479 F. Supp. 3d 543, 558 n.119

(W.D. Ky. 2020). The decision below gives such municipalities license to compel speech.

Left to stand, the decision will hurt consumers in

one of two ways. It will force either (a) unwilling associations; or (b) the exit of a class of market

13

participants. The former market distortion results in

poorly matched providers and consumers. The latter

removes from the market merchants whom some consumers may prefer (regardless of the merchant’s religious or political views). A smaller marketplace is necessarily less diverse and less competitive than a larger

market with a diverse set of providers.

II. Review is needed to clarify that the govern-

ment may not compel speech from creative

professionals even if their “unique” products

are considered a “monopoly” in some sense.

Even if one were to accept the lower court’s redefinition of monopoly, review is needed to clarify that

the presence of a so-called monopoly in products created by creative professionals cannot justify compelling their speech.

In other contexts, this Court has held that the First

Amendment precludes restrictions on or compulsion of

speech, even in the presence of an actual monopoly.

For instance, the First Amendment prevented a State

from requiring newspapers to print political candidates’ replies to press criticisms, even though press,

television, and radio companies had consolidated, creating a “monopoly of the means of communication.”

Miami Herald Pub. Co., Div. of Knight Newspapers,

Inc. v. Tornillo, 418 U.S. 241, 250 (1974). It did not

matter that reaching the public through print media

was “almost impossible” thanks to this monopoly. Id.

at 251. The statute could not be justified even by the

“concededly important interest of ensuring free and

fair elections by means of an electorate informed about

the issues.” Id. at 260 (White, J., concurring).

Likewise, this Court found unconstitutional a government order requiring a utility to “include in its

14

billing envelopes speech of a third party with which

the utility disagrees.” Pac. Gas & Elec. Co. v. Pub.

Utils. Com., 475 U.S. 1, 4 & n. 1 (1986). The same concerns that required invalidating “the compelled-access

rule in Tornillo apply to [the utility] as well as to the

institutional press.” Id. at 11.

By the same token, a utility could not be barred

from including in monthly bills “inserts discussing controversial issues of public policy,” even though the utility was a “government regulated monopoly.” Consol.

Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 532 &

n.1 (1980). The regulation was not justified by state

interests in protecting the privacy of the utility’s “captive audience” of customers, ensuring that limited resources were allocated in the public interest, or ensuring that customers were not forced to subsidize the

utility’s speech. Id. at 540–543.

What is more, the presence of a monopoly does not

justify restricting commercial speech. In Central Hudson, this Court struck down a regulation banning advertising by a public utility that promoted electricity

use, reasoning that “[e]ven in monopoly markets, the

suppression of advertising * * * defeats the purpose of

the First Amendment.” Cent. Hudson Gas & Elec.

Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 567 (1980).

The restriction was not justified even by a “direct link”

to the State’s “important” interest in “energy conservation.” Id. at 569–570.

Here, of course, we are not dealing with faceless

public utilities but flesh-and-blood creative individuals. As this Court has recognized, laws that compel

speech “invade the sphere of intellect and spirit which

is the purpose of the First Amendment to our Constitution to reserve from all official control.” W. Va. State

15

Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Indeed, at “the heart of the First Amendment lies the

principle that each person should decide for himself or

herself the ideas and beliefs deserving of expression,

consideration, and adherence.” Turner Broad. Sys. v.

FCC, 512 U.S. 622, 641 (1994).

The question here is whether the government may

invade the spirit and intellect of individuals precisely

because they are especially talented, thereby producing “unique” goods and services offered to the public.

Under a sound reading of the First Amendment and

this Court’s precedents, it may not.

CONCLUSION

Certiorari should be granted.

Respectfully submitted.

ANDREW C. NICHOLS

Charis Lex P.C.

4250 N. Fairfax Dr.,

Ste. 600

Arlington, VA 22203

(571) 549-2645

anichols@charislex.com

SEAN P. GATES

Counsel of Record

Charis Lex P.C.

301 N. Lake Ave.

Ste. 1100

Pasadena, CA 91101

(626) 508-1715

sgates@charislex.com

Counsel for Amici Curiae

OCTOBER 2021

Appendix

List of Amici Curiae*

Samuel Gregg, D.Phil. (Oxon.), is Research Director at

the Acton Institute.

Catherine R. Pakaluk, Ph.D., is Assistant Professor of

Social Research and Economic Thought, The Busch

School of Business and Economics, The Catholic University of America.

Allen Mendenhall, M.A., J.D., LL.M., Ph.D., is Associate Dean and Grady Rosier Professor in the Sorrell

College of Business at Troy University.

Eric Rasmusen is the former Dan and Catherine Dalton Professor of Business Economics and Public Policy, Kelley School of Business, Indiana University.

Jay W. Richards, Ph.D., is the William E. Simon Senior Research Fellow at The Heritage Foundation and

Adjunct Professor, The Busch School of Business, The

Catholic University of America.

R. Neil Rodgers is Professor of Law at Trinity Law

School, Trinity International University.

Lisa A Runquist is Adjunct Professor of Law at Trinity

Law School, Trinity International University.

Andrew Seeley is Tutor at Thomas Aquinas College

and Executive Director of the Institute for Catholic

Liberal Education.

* Amici appear in their individual capacities. Institutional affiliations are listed for identification purposes

only.