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

Supreme Court briefJun 2, 2022

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No. 21-476

In the Supreme Court of the United States

__________

303 CREATIVE LLC, A LIMITED LIABILITY COMPANY;

LORIE SMITH, PETITIONERS

AUBREY ELENIS; CHARLES GARCIA; AJAY MENON;

MIGUEL RENE ELIAS; RICHARD LEWIS;

KENDRA ANDERSON; SERGIO CORDOVA;

JESSICA POCOCK; PHIL WEISER, RESPONDENTS

__________

ON 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.

11921 Freedom Dr.,

Ste. 550

Reston, VA 20190

(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 violates the

Free Speech Clause of the First Amendment.

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES ........................................ iv

SUMMARY OF ARGUMENT AND INTEREST OF

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

STATEMENT ............................................................... 3

A. How markets work .......................................... 3

B. What happened here ....................................... 5

ARGUMENT ................................................................. 6

The lower court’s distortion of the concept of

monopoly threatens great social harm. ................ 6

A. Defining each artist as a “monopoly” because

individual artistic expression is “unique”

defies basic economics. .................................... 7

B. Defining each artist as a “monopoly” would

justify compelling speech from a broad range

of professionals. ............................................. 10

II. Absent monopoly, market forces will allocate

artistic services, prevent exclusion, and enhance

social welfare; in contrast, compelling speech will

harm social welfare. ............................................. 14

A. Market forces ensure only those with sincere

and compelling conscience objections will

refuse service. ................................................ 14

B. Market forces ensure the availability of

alternatives. ................................................... 16

C. Coercing artists to speak against their

consciences will diminish social welfare. ..... 18

iii

III. Negative externalities cannot justify compelling

speech. .................................................................. 19

CONCLUSION ........................................................... 20

TABLE OF AUTHORITIES

Page(s)

Cases

Brown Shoe Co. v. United States,

370 U.S. 294 (1962) ................................................... 8

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

448 P.3d 890 (Ariz. 2019) ....................................... 11

Chelsey Nelson Photography LLC v.

Louisville/Jefferson Cty. Metro Gov’t,

479 F. Supp. 3d 543 (W.D. Ky. 2020) ..................... 14

Chessman v. Nainby,

93 Eng. Rep. 819 (1726) .......................................... 18

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

749 F.3d 1332 (Fed. Cir. 2014) ................................. 8

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

504 U.S. 451 (1992) ................................................. 10

Elane Photography, LLC v. Willock,

309 P.3d 53 (N.M. 2013) ................................... 17, 19

Hack v. President & Fellows of Yale Coll.,

237 F.3d 81 (2d Cir. 2000) ........................................ 9

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

of Boston,

515 U.S. 557 (1995) ................................................... 9

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

547 U.S. 28 (2006) ..................................................... 8

LifeWatch Servs. v. Highmark Inc.,

902 F.3d 323 (3d Cir. 2018) ...................................... 8

Matal v. Tam,

137 S. Ct. 1744 (2017) ............................................. 20

N. Pac. Ry. Co. v. United States,

356 U.S. 1 (1958) ....................................................... 3

Nat’l Collegiate Athletic Ass’n v. Bd. of Regents,

468 U.S. 85 (1984) ..................................................... 7

Ohio v. Am. Express Co.,

138 S. Ct. 2274 (2018) ............................................... 8

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

315 F.3d 101 (2d Cir. 2002) ...................................... 9

Queen City Pizza v. Domino’s Pizza,

124 F.3d 430 (3d Cir. 1997) ...................................... 9

Right Field Rooftops, LLC v.

Chi. Baseball Holdings, LLC,

87 F. Supp. 3d 874 (N.D. Ill. 2015) .......................... 9

Roberts v. United States Jaycees,

468 U.S. 609 (1984) ................................................... 5

Rock River Communs., Inc. v.

Universal Music Group, Inc.,

2011 U.S. Dist. LEXIS 46023 (C.D. Cal. 2011) ..... 10

Subsolutions, Inc. v. Doctor’s Ass’n,

62 F. Supp. 2d 616 (D. Conn. 1999) ......................... 9

Tanaka v. Univ. of S. Cal.,

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

Telescope Media Grp. v. Lucero,

936 F.3d 740 (8th Cir. 2019)................................... 11

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

695 F. Supp. 150 (S.D.N.Y. 1988) .......................... 10

Turner Broad. Sys. v. FCC,

512 U.S. 622 (1994) ................................................. 19

United States v. Cont’l Can Co.,

378 U.S. 441 (1964) .................................................. 7

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

351 U.S. 377 (1956) ............................................... 7, 8

United States v. Grinnell Corp.,

384 U.S. 563 (1966) ................................................... 7

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

319 U.S. 624 (1943) ................................................. 19

Walker Process Equip., Inc. v.

Food Mach. & Chem. Corp.,

382 U.S. 172 (1965) ................................................... 8

Codes and Ordinances

Ann Arbor, Mich., Code of Ordinances

§§ 9:151, 9:153 ........................................................ 12

Broward County, Fla., Code of Ordinances

§§ 16½-3, 16½-34 .................................................... 11

Champaign, Ill., Code of Ordinances

§ 17-3, 17-56 ............................................................. 12

City of College Park, MD, Charter

§ C1-2 ...................................................................... 12

vii

D.C. Code

§§ 2-1401.02(25), 2-1402.31(a) ............................... 11

Ft. Lauderdale, Fla., Code of Ordinances

§§ 29-2, 29-16 .......................................................... 12

Harford County, Md., Code of Ordinances

§§ 95-3, 95-5 ............................................................ 12

Howard County, Md., Code of Ordinances

§ 12.210 ................................................................... 12

Lansing, Mich., Code of Ordinances

§§ 297.02, 297.04 .................................................... 12

Madison, Wisc., Mun. Code

§§ 39.03(1), 39.03(5) ............................................... 12

Miami Beach, Fla., Code of Ordinances

§§ 62-31, 62-87 ........................................................ 12

Orange County, N.C., Code of Ordinances

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

Seattle, Wash., Mun. Code

§§ 14.06.020, 14.06.030............................................ 12

Shreveport, La., Code of Ordinances

§§ 39-1, 39-2 ............................................................. 12

Sun Prairie, Wisc., Code of Ordinances

§ 9.21.020 ................................................................. 12

Urbana, Ill., Code of Ordinances

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

Wayne County, Mich., Ordinance No. 2020-586 ....... 12

viii

Other Authorities

1 Herbert Hovenkamp, Mark Janis & Mark Lemley,

IP and Antitrust (2005 Supp.) .................................. 9

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 ................................ 13

Amanda Gorman

https://perma.cc/T9KE-ULAK ................................ 13

Amelia Irvine, How technology and the free market

can eliminate discrimination,

The Examiner (Washington D.C.), July 13, 2017 . 15

Andrew Koppelman, Gay Rights, Religious

Accommodations, and the Purposes of

Antidiscrimination Law,

88 S. Cal. L. Rev. 619 (2015) .................................. 17

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 ................................. 13

Chris Taylor, Anti-equality Indiana pizza joint gets

seriously trolled, shuts up shop,

Mashable.com, Apr. 2, 2015 ................................... 15

Clifford Winston, Government Failure versus Market

Failure: Microeconomics Policy Research and

Government Performance (2006) ............................. 3

Colleen Shalby, Winery that refused to hold a

wedding for same-sex couple reverses course

following criticism,

Los Angeles Times, Sept. 13, 2019......................... 15

Emily Pfund, Walkerton police still investigating

threats to 'burn down' Memories Pizza, prosecutors

say, The Elkhart Truth (Indiana), Apr. 3, 2015 .... 15

Gary S. Becker, The Economics of Discrimination

(2d ed. 1971) ........................................................ 4, 14

George Brown, Bakery Forced To Close Over Gay

Wedding Denial,

CBS-3 WREG (Memphis, Tennessee), Sept. 4, 2013

................................................................................. 15

History of Coca-Cola Advertising Slogans

https://perma.cc/M2FU-UCXM ................................ 9

Human Rights Campaign, Corporate Quality Index

(2017) ....................................................................... 15

Jason Rantz, Seattle bar tried to deny service to

Republicans celebrating Kavanaugh,

770 KTTH (Oct. 8, 2018)

https://perma.cc/LPF5-ZL8K. ................................. 12

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 ................................ 13

Lauren Dukoff, Amanda Gorman Talks Writing, the

Power of Change and Her Own Presidential

Aspirations, Variety Magazine

https://perma.cc/QEP2-MSWW .............................. 13

Mikal Gilmore, The Life and Times of Bob Marley:

How he changed the world,

Rolling Stone (Mar. 10, 2005)

https://perma.cc/SK9L-JS3T .................................. 10

Milton Friedman, Capitalism and Freedom (2002) 3, 4

Nathan B. Oman, Doux Commerce, Religion, and the

Limits of Antidiscrimination Law,

92 Ind. L.J. 693 (2017) ...................................... 17, 19

Nikki Krize, Bridal Shop Owners Get Death Threats

Over Same-Sex Policy,

ABC-16 WNEP (Wilkes Barre, Scranton,

Pennsylvania), Aug. 2, 2017 ................................... 16

Phillip E. Areeda & Herbert Hovenkamp, Antitrust

Law, ¶563a (3d. ed. 2007) ......................................... 8

Richard A. Epstein, Forbidden Grounds: The Case

Against Employment Discrimination Laws (1992) . 4

Richard A. Epstein, Public Accommodations Under

the Civil Rights Act of 1964: Why Freedom of

Association Counts as a Human Right,

66 Stan. L. Rev. 1241 (2014) .................................. 17

Steve Mocarsky, Venue reportedly receives threats

after refusing to host gay wedding receptions,

The Times Leader (Wilkes-Barre, Pennsylvania),

July 11, 2014 ........................................................... 15

The Poetry Society of New York

https://perma.cc/WZ5K-MK4W .............................. 13

Thomas C. Berg, Symposium: Religious

Accommodation and The Welfare State,

38 Harv. J.L. & Gender 103 (2015) ........................ 17

Thomas C. Berg, What Same-Sex-Marriage and

Religious-Liberty Claims Have in Common,

5 N.W. J.L. & Soc. Pol’y 206 (2010) ....................... 19

Warren Richey, For those on front lines of religious

liberty battle, a very human cost,

The Christian Science Monitor, July 16, 2016 ...... 16

SUMMARY OF ARGUMENT

AND INTEREST OF AMICI CURIAE1

This case presents a question at the intersection of

antidiscrimination laws and free-speech rights: Does

the government’s interest in equal access to public accommodations justify compelling speech from artists

by deeming their products monopolies?

The court below said yes—even while conceding

that such products involve “pure speech.” The court

held that compulsion is justified to ensure a “free and

open economy” and “access to publicly available goods

and services.” According to the court, even if consumers can get similar products from thousands of other

providers, the work of an artist is “unique” and “nonfungible.” Effectively, the court reasoned that each

creative individual enjoys a monopoly. And their

speech may be compelled to ensure that protected classes may access that monopoly market.

This reasoning violates fundamental economics.

First, the court’s definition of monopoly is unprecedented. As this Court has long recognized, under basic

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 negative crosselasticity of demand—meaning that if Product 1 drops

in price, consumers will switch to Product 1 from

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. Each of the parties has filed a letter granting blanket

consent to the filing of amicus briefs.

Product 2. When that is the case, there is no monopoly. Ignoring this principle, the court below fabricated

a novel definition of monopoly just to compel speech.

Now picture courts combining that limitless definition of monopoly with the expansive protected categories under many antidiscrimination laws. Courts will

have free rein to force artists to speak on diverse topics. That is what happened here. The court below held

that the State’s interest in ensuring access to services

justified compelling a creative professional to “create

artistic expression that celebrates same-sex marriages,” despite her religious convictions. That reasoning has no stopping point. Other personal convictions—for example, political affiliations and opinions—will be invaded and speech compelled. This

Court should clarify that the lower court’s conception

of a monopoly is mistaken and dangerous.

Second, there was no need to rewrite the law of monopolies to protect disfavored groups. Market forces

ensure that consumers will find willing artists precisely because there was no monopoly here. And those

same market forces will ensure that only those few artists with substantial conscience objections will seek an

exception from antidiscrimination laws.

In contrast, allowing the State to compel speech

from objecting artists will hurt consumers. It will force

mismatched associations between artists and customers, drive artists from the market, and prevent entry

by others. As a result, consumers will suffer.

Amici curiae, listed in the Appendix, are scholars

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

and publish 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 impoverish the marketplace.

STATEMENT

A. How markets work

It is now beyond debate that markets premised on

voluntary exchange serve as bulwarks that protect individual freedom, advance innovation, and enhance social welfare. See, e.g., Milton Friedman, Capitalism

and Freedom 8–21 (2002); Clifford Winston, Government Failure versus Market Failure: Microeconomics

Policy Research and Government Performance 1-6

(2006). After all, markets “yield the best allocation of

our economic resources, the lowest prices, the highest

quality and the greatest material progress, while at

the same time providing an environment conducive to

the preservation of our democratic political and social

institutions.” N. Pac. Ry. Co. v. United States, 356 U.S.

1, 4 (1958).

Because both sides gain from voluntary transactions, competitive market dynamics most efficiently allocate goods and services. While economists typically

focus on price and quality, markets match providers

and consumers based on myriad other preferences.

For example, merchants who favor “socially responsible” business practices will match with consumers

who prefer those practices. Merchants who sell only

products “Made in America” will match with consumers who prefer those products. And merchants who

hire ex-convicts to help them rebuild their lives will

match with consumers who share that objective.

Meanwhile, other merchants will aim for a larger audience and systematically work to avoid offending certain political, ethnic, or religious groups.

In other words, markets let merchants cater to consumer preferences. Merchants may, and frequently

do, cater to certain ethnicities, religious groups, age

groups, occupations, and economic groups. By the

same token, consumers may choose the merchants who

best suit their preferences.

The central insight here is that neither providers

nor consumers are homogeneous. There is great variety beyond simple product differentiation. This diversity is a social good because it expands opportunities

for producers and consumers alike.

In a monopoly, consumers face one supplier who

could decide to refuse to deal for all sorts of reasons,

including invidious reasons. But when there is no monopoly, consumers may choose among providers who

most closely serve their tastes. In the context of web

designers, for instance, consumers may select a designer for many reasons other than price and quality—

such as seeking to support minority-owned businesses,

preferring designers of a particular political persuasion, or, say, enjoying the novelty of buying from a former professional athlete. By facilitating the accurate

matching of consumer and merchant preferences, markets enhance social welfare.

The presence of alternatives also greatly mitigates,

if not eliminates, the effects of discrimination. See

Friedman, supra, at 108–115; Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 15–58 (1992); Gary S. Becker, The

Economics of Discrimination 39–47 (2d ed. 1971).

Markets ensure that consumers facing potential discrimination can find better-suited merchants, and

markets punish merchants who discriminate by cutting their revenues.

What happened here

Lorie Smith is a website designer. She is the sole

owner of 303 Creative, one of hundreds of website design companies in her local area and thousands nationwide. Pet. App. 6a, 190a. Smith is willing to work with

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

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. App. 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.

Colorado law prohibits places of public accommodation from refusing to provide services because of “sexual orientation.” Colo. Rev. Stat. § 24-34-601(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.

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

The Tenth Circuit acknowledged that Smith’s “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. App. 9a–19a, 20a, 22a. Yet the court still held

that the State could compel Smith to speak against her

religious convictions to ensure “‘equal access to publicly available goods and services.’” Pet. App. 26a

(quoting Roberts v. United States Jaycees, 468 U.S.

609, 624 (1984)). According to the Tenth Circuit,

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 businesses,” 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, compelling Smith to speak in support of

same-sex marriage was necessary because Smith is effectively “a monopoly.” Pet. App. 29a. According to

the court, the “product at issue is not merely ‘custommade wedding websites,’ but rather ‘custom-made

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. Without State coercion, the court feared widespread “market harm.” Pet. App. 30a. “It is not difficult to imagine the problems created where a wide

range of custom-made services are available to a favored group of people, and a disfavored group is relegated to a narrower selection of generic services.” Ibid.

ARGUMENT

I. The lower court’s distortion of the concept of

monopoly threatens great social harm.

The Tenth Circuit justified its compulsion of speech

by finding that Smith is, in effect, a “monopoly.” But

the court’s definition of monopoly perverts the very

economic concept on which it relies. The court recognized that LGBT consumers could obtain weddingwebsite design services from businesses other than

Smith’s. Pet. App. 28a. Smith competes with hundreds of local web-design companies and thousands

nationwide. Id. at 190a. Yet the court held that the

market was not competitive, that Smith is a monopolist, and that compelling her to speak is justified because Smith’s web-design services are “unique” and

“not fungible.” Id. at 28a.

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

chill speech and harm consumers.

A. Defining each artist as a “monopoly” because individual artistic expression is

“unique” defies basic economics.

What defines a monopoly is not uniqueness of a

product or service but lack of alternatives. “When 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

need not 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”). They

need only be “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).

Applying this standard, courts combine “different

products or services into ‘a single market’ when ‘that

combination reflects commercial realities.’” Ohio v.

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

those realities show that products and services that

are unique—or “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.)).

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 no doubt “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). The UCLA women’s

soccer program may be “unique,” but it competes with

other programs for athletes, and the programs are

thus “interchangeable.” Tanaka v. Univ. of S. Cal.,

252 F.3d 1059, 1063–1064 (9th Cir. 2001).

Lower courts have consistently rejected the uniqueequals-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). This Court

essentially did so 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

History

Coca-Cola

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

Advertising

Slogans,

far short of supporting a claim that petitioners enjoy

an abiding monopoly of access to spectators.”).

Products produced by artists, 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 singular 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. Given the

availability of hundreds, if not thousands, of alternative web designers, it cannot be said that compelling

one particular artist to speak is necessary to ensure

access to the marketplace.

B. Defining each artist as a “monopoly”

would justify compelling speech from a

broad range of professionals.

If adopted by this Court, the Tenth Circuit’s reasoning will chill speech across the artistic professions.

All that will be needed to justify compulsion is that the

products or services be “unique” in some sense.

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

from religious artists. 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. App.

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. App. 69a

(Tymkovich, C.J., dissenting). Videographers and calligraphers could be compelled to create speech that violates their religious convictions. See Pet. App. 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); cf. 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”).

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,

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 is easy to envision the broad scope of professionals whose speech

could be compelled. Think of artists like Amanda Gorman, the youngest inaugural poet in U.S. history,

whose work reflects her convictions about “the world’s

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

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

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/QEP2MSWW. Ms. Gorman writes commissioned poems.

See Amanda Gorman, https://perma.cc/T9KE-ULAK.

Under the circuit court’s reasoning, what would stop a

city or county from requiring Ms. Gorman to accept a

commission for a poem endorsing racism, sexism, or

police brutality?

Perhaps a court would find that Ms. Gorman has

not accepted enough 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/WZ5K-MK4W.

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

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, “unique goods and services are where public accommodation laws are most

necessary to ensuring equal access.” Pet. App. 30a.

These examples are not far-fetched. For instance,

one municipality has already claimed 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 lower court’s distorted definition of monopoly

thus threatens great harm. It should be corrected.

II. Absent monopoly, market forces will allocate

artistic services, prevent exclusion, and enhance social welfare; in contrast, compelling

speech will harm social welfare.

Nor can compelled speech be justified by any supposed need to prevent market exclusion.

A. Market forces ensure only those with sincere and compelling conscience objections

will refuse service.

For starters, significant market forces will limit the

number of artists who refuse to create speech celebrating same-sex marriage. Cf. Becker, supra, at 39–45

(describing how competitive forces tend to drive out

most forms of market discrimination). Those who object to speaking in favor of same-sex marriage will lose

business and face social costs, which will winnow out

the insincere, leaving only those whose consciences

would force them to exit the market in the face of State

coercion. See, e.g., Colleen Shalby, Winery that refused

to hold a wedding for same-sex couple reverses course

following criticism, Los Angeles Times, Sept. 13, 2019,

https://tinyurl.com/rbz5ajk.

First, objecting artists bear the cost of lost sales,

not only from turning down work but also from others

who disagree with the artist’s stance and stay away.

Merchants who have declined to provide services for

same-sex weddings have faced social-media-led boycotts and a flood of negative reviews on sites like Yelp.

See Amelia Irvine, How technology and the free market

can eliminate discrimination, The Examiner (Washington D.C.), July 13, 2017; Chris Taylor, Anti-equality

Indiana pizza joint gets seriously trolled, shuts up

shop, Mashable.com, Apr. 2, 2015; Emily Pfund, Walkerton police still investigating threats to 'burn down'

Memories Pizza, prosecutors say, The Elkhart Truth

(Indiana), Apr. 3, 2015; Steve Mocarsky, Venue reportedly receives threats after refusing to host gay wedding

receptions, The Times Leader (Wilkes-Barre, Pennsylvania), July 11, 2014.

Potential losses include other customers who fear

retribution for doing business with such artists. For

instance, the Human Rights Campaign—which rates

workplaces on “LGBT equality,” reviews the policies of

over 1,200 companies, and boasts that “258 of the Fortune 500-ranked businesses achieved a 100 percent

rating”—penalizes companies “found to have a connection with an anti-LGBTQ+ organization or activity.”

Human Rights Campaign, Corporate Quality Index

(2022), https://perma.cc/8CU6-JJVX. This kind of

pressure can force businesses to close. See, e.g.,

George Brown, Bakery Forced to Close Over Gay Wedding Denial, CBS-3 WREG (Memphis, Tennessee),

Sept. 4, 2013.

Second, artists who decline to create products for

same-sex marriages may also face significant social

costs, even including illegitimate forms of aggressive

behaviors, such as death threats, abusive phone calls,

and a torrent of vitriolic hate mail. See, e.g., Nikki

Krize, Bridal Shop Owners Get Death Threats Over

Same-Sex Policy, ABC-16 WNEP (Wilkes Barre,

Scranton, Pennsylvania), Aug. 2, 2017; Warren

Richey, For those on front lines of religious liberty battle, a very human cost, The Christian Science Monitor,

July 16, 2016.

Third, artists who seek an exception from antidiscrimination laws, like petitioners here, must defend

against legal challenges. Even if the Court rules for

petitioners, artists seeking to be excepted from antidiscrimination laws will often still have to prove their

right to an exception.

These economic and social costs moot the need to

compel artists to speak against their consciences.

B. Market forces ensure the availability of alternatives.

As the record shows, market forces also ensure the

availability of alternative providers. Consider the

hundreds of alternative local web-design providers

and thousands nationwide. And new providers can enter the market any time, guaranteeing that objecting

artists will never dominate the market.

On the flipside, only a tiny fraction of the market

seeks a conscience-based exception. Nor is that surprising—because objectors will be identified, raising

social and economic costs. And if, as is the case today,

“gay people are generally protected against discrimination, then a few outliers won’t make any difference.”

Andrew

Koppelman,

Gay

Rights,

Religious

Accommodations, and the Purposes of Antidiscrimination Law, 88 S. Cal. L. Rev. 619, 627–628 (2015); see

also Thomas C. Berg, Symposium: Religious Accommodation and The Welfare State, 38 Harv. J.L. & Gender

103, 138 (2015) (when balancing interests, if “the patrons have access, without hardship, to another provider, then the legal burden on the provider is the

more serious one”). Preventing the State from compelling speech from those outliers thus does not present

“a threat to meaningful participation in commercial

life.” Nathan B. Oman, Doux Commerce, Religion, and

the Limits of Antidiscrimination Law, 92 Ind. L.J. 693,

719 (2017). Competitive forces prevent the objectors’

individual preferences from dominating the market.

Still, some insist there can be no exceptions to the

antidiscrimination laws, invariably citing Title II of

the 1964 Civil Rights Act. See, e.g., Elane Photography, LLC v. Willock, 309 P.3d 53, 79 (N.M. 2013)

(Bosson, J., concurring). They say that the Jim Crow

South proves that markets do not mitigate discrimination.

But the analogy is inapt. Under Jim Crow, public

institutions supported private aggression and backstopped pervasive private discrimination. At the time,

therefore, the “best practical argument for Title II was

that it functioned as a corrective against private force

and public abuse in government.” Richard A. Epstein,

Public Accommodations Under the Civil Rights Act of

1964: Why Freedom of Association Counts as a Human

Right, 66 Stan. L. Rev. 1241, 1254–1261 (2014). Such

conditions do not exist today. To the contrary, public

institutions stand foursquare against discrimination,

as do powerful media and educational institutions.

C. Coercing artists to speak against their

consciences will diminish social welfare.

Compelling artists to speak will undermine the

working of the market. Artists who bow to the antidiscrimination law’s demands will do so reluctantly, decreasing their incentives to provide their best efforts.

But given the threat of legal retaliation, such artists

will likely hide their reluctance—making it harder for

consumers to tell whether a given artist is suitable.

Social welfare is diminished by the resulting poor

match between provider and consumer.

Alternatively, objecting artists will exit the market

(or never enter in the first place), reducing the number

and variety of available artists. But consumers may

prefer such excluded artists for many nondiscriminatory reasons. For instance, they may respect or value

the artist’s commitment to his or her convictions, even

if they do not share those convictions. Or the artist’s

convictions may closely align with other religious or

moral convictions that consumers do value. Still other

consumers may not even know of or care about the artist’s convictions; they just like the artist’s work.

By forcing such artists out of the market, therefore,

application of the antidiscrimination law not only

harms the artists, it also harms other market participants. As one English court recognized nearly three

hundred years ago, restraints that drive away market

players cannot “be endured; because the publick loses

the benefit of the party’s labour, and the party himself

is rendered an useless member of the community.”

Chessman v. Nainby, 93 Eng. Rep. 819, 821 (1726).

III. Negative externalities cannot justify compelling speech.

Finally, using government power to coerce artists

to speak against their consciences cannot be justified

on notions of protecting dignity interests. Each side

has claims to violations of their dignity. See Oman,

supra, at 701. There is an indignity in being forced to

speak in violation of one’s conscience or to exit one’s

profession. See Thomas C. Berg, What Same-Sex-Marriage and Religious-Liberty Claims Have in Common,

5 N.W. J.L. & Soc. Pol’y 206, 207–208 (2010). 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 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).

Despite this harm to the artist, states like Colorado

place no such restrictions on consumers. Consumers

may discriminate against any artist for any reason.

Such states condemn discrimination by one set of market actors but not the other. That makes no sense.

It is no answer to say that enduring such state coercion or being forced out of the market is “the price of

citizenship.” Elane Photography, 309 P.3d at 80 (Bosson, J., concurring). Why should the “price of citizenship” instead not include being turned down by artists

who object to one’s message?

Nor can laws like Colorado’s be justified by insisting that they prevent negative externalities because

declining to create certain art offends not only the requester but also segments of the community. Under

standard economic theory, externalities merit intervention only to prevent an overall reduction in social

welfare.

Rather than preserving overall welfare, however,

intervention based on offense taken by others will

harm overall welfare. It will allow groups to veto the

activities of others based on a subjective offense,

which, in turn, will encourage people to gain an advantage by becoming ever angrier and more restive.

Let everyone adopt this strategy, and society will

splinter as every segment is pitted against the others.

If society is to splinter, that splintering should not be

encouraged by the government. As this Court explained, “a speech burden based on audience reactions

is simply government hostility and intervention in a

different guise.” See Matal v. Tam, 137 S. Ct. 1744,

1767 (2017).

CONCLUSION

Compelling artists to speak cannot be justified by

any legitimate theory of monopoly, or any state interest in ensuring equal access to goods and services. The

Court should hold that such compelled speech violates

the First Amendment.

Respectfully submitted.

ANDREW C. NICHOLS

Charis Lex P.C.

11921 Freedom Dr.,

Ste. 550

Reston, VA 20190

(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

JUNE 2022

APPENDIX

Appendix

List of Amici Curiae*

Lloyd Cohen, J.D., Ph.D., is Professor of Law at the

Antonin Scalia Law School, George Mason University.

Richard A. Epstein is the Laurence A. Tisch Professor

of Law at the New York University School of Law. He

is also the James Parker Hall Distinguished Service

Professor of Law Emeritus and a senior lecturer at the

University of Chicago, and the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution.

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.

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.

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.

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

only.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.