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

No. 21-476

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------303 CREATIVE LLC, et al.,

Petitioners,

v.

AUBREY ELENIS, et al.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE

MULTIMEDIA PRODUCTION PROFESSIONALS

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------JOHN C. SULLIVAN

Counsel of Record

S|L LAW PLLC

610 Uptown Blvd., Suite 2000

Cedar Hill, Texas 75104

john.sullivan@the-sl-lawfirm.com

469.523.1351 T

469.613.0891 F

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

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

ii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

6

ARGUMENT ........................................................

8

I.

The First Amendment Protects Various

Types Of Speech—Including Editorial

Discretion—Across A Wide Range Of Media. .............................................................

9

II.

The Failure To Protect Diverse Speech

Short-Circuits The Exchange Of Ideas Essential To A Free Society. .......................... 14

III.

Censorship Of The Protected Speech At Issue In This Case Undermines Editorial

Freedom For Amici And Other Speech Outlets That Contribute To Public Debate ........ 16

CONCLUSION..................................................... 21

ii

TABLE OF AUTHORITIES

Page

CASES

Agency for Int’l Dev. v. All. for Open Soc’y Int’l,

Inc., 570 U.S. 205 (2013)..........................................16

Ark. Educ. Television Comm’n v. Forbes, 523 U.S.

666 (1998) .......................................................... 10, 12

Brown v. Ent. Merchs. Ass’n, 564 U.S. 786 (2011) .......12

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

Columbia Broad. Sys., Inc. v. Democratic Nat’l

Comm., 412 U.S. 94 (1973) ......................................13

Dun & Bradstreet, Inc. v. Greenmoss Builders,

Inc., 472 U.S. 749 (1985)...................................... 8, 14

Groswirt v. Columbus Dispatch, 238 F.3d 421

(6th Cir. 2000)..........................................................11

Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, 515 U.S. 557 (1995) ........... 9, 10, 18

Janus v. AFSCME, Council 31, 138 S. Ct. 2448

(2018) .......................................................................14

Johari v. Ohio State Lantern, 76 F.3d 379 (6th

Cir. 1996) .................................................................11

Lee v. Weisman, 505 U.S. 577 (1992) ............................6

Manhattan Cmty. Access Corp. v. Halleck, 139

S. Ct. 1921 (2019) .................................. 10, 13, 18, 19

Melvin v. U.S.A. Today, No. 3:14-cv-00439, 2015

WL 251590 (E.D. Va. Jan. 20, 2015) .......................11

Miami Herald Publ’g Co. v. Tornillo, 418 U.S.

241 (1974) .............................................. 10, 11, 19, 20

iii

TABLE OF AUTHORITIES—Continued

Page

N.Y. Times Co. v. Sullivan, 376 U.S. 254

(1964) ....................................................... 9, 11, 12, 14

Obergefell v. Hodges, 576 U.S. 644 (2015) ............ 6, 15

Pittsburgh Press Co. v. Pittsburgh Comm’n on

Hum Rels., 413 U.S. 376 (1973) ..............................12

Reno v. ACLU, 521 U.S. 844 (1997) ............................19

Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487

U.S. 781 (1988) ........................................................13

Rose v. Morning Call, Inc., No. 96-2973, 1997 WL

158397 (E.D. Pa. Mar. 28, 1997)..............................11

Roth v. United States, 354 U.S. 476 (1957) ................15

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc., 547 U.S. 47 (2006) ...............................13

Sinn v. Daily Nebraskan, 638 F. Supp. 143 (D.

Neb. 1986) ................................................................11

Street v. New York, 394 U.S. 576 (1969) ......................18

Texas v. Johnson, 491 U.S. 397 (1989) .................. 15, 16

Tinker v. Des Moines Indep. Comm. Sch. Dist.,

393 U.S. 503 (1969) .................................................15

Treanor v. Wash. Post Co., 826 F. Supp. 568

(D.D.C. 1993) ...........................................................11

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622

(1994) ................................................................. 10, 16

U.S. Telecom Ass’n v. Fed. Commc’ns Comm’n,

855 F.3d 381 (D.C. Cir. 2017) .................................... 19

iv

TABLE OF AUTHORITIES—Continued

Page

W. Va. State Board of Educ. v. Barnette, 319 U.S.

624 (1943) .................................................................. 19

Ward v. Rock Against Racism, 491 U.S. 781 (1989)..........9

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........................................... passim

STATUTES

47 U.S.C. § 230 (Section 230 of the Communications Decency Act) ...................................................14

Colorado Anti-Discrimination Act (CADA),

C.R.S. § 24-34-601(2)(a) ............................ 1, 8, 17, 19

HB 20, Tex. Civ. Prac. & Rem. Code § 143A.002

(“Censorship Prohibited”), Dec. 2, 2021..................13

RULES

Sup. Ct. R. 37.6 .............................................................1

OTHER AUTHORITIES

2 Z. Chafee, Government and Mass Communications (1947) ..............................................................11

1

INTEREST OF AMICI CURIAE1

Amici are a group of individuals and organizations

dedicated to the creation, curation, and promotion of

speech that encourages traditional, conservative values—and these groups depend on editorial discretion

in offering consistent messages about those topics. In

the marketplace of ideas, such a voice is invaluable.

This speech—made across a wide range of media, from

television to radio to Internet to print—relies on the

First Amendment and its robust protections for differing viewpoints.

Under the First Amendment, amici currently have

the editorial freedom to engage in speech that helps

ensure that debate on public issues retains a diversity

of opinions. But Colorado’s interpretation of the Colorado Anti-Discrimination Act (CADA), C.R.S. § 24-34601(2)(a), has created a censorship tool that goes far

beyond even just the local baker, artist, or service provider. Indeed, the Tenth Circuit’s logic in upholding

Colorado’s speech restrictions cuts across mediums

and thus threatens the variety of viewpoints offered by

amici. At the heart of the freedom of speech, safeguarded jealously under this Court’s precedent, is the

commitment to protect different and diverse ideas.

Amici’s interest lies in the continued ability to offer a

different perspective on a wide range of issues that the

1

Pursuant to Supreme Court Rule 37.6, no counsel for any

party authored this brief, in whole or in part, and no person or

entity other than amici contributed monetarily to its preparation

or submission. The parties’ consents to the filing of this brief have

been filed with the Clerk.

2

Tenth Circuit’s undermining of the First Amendment

threatens.

Amicus National Religious Broadcasters (NRB) is

a non-profit, membership association that represents

the interests of Christian broadcasters throughout the

nation. Most of its approximately 1100 member organizations are made up of radio stations, radio networks,

television stations, television networks, and the executives, principals, and production and creative staff of

those broadcast entities. NRB member broadcasters

are both commercial and non-commercial entities.

Since 1944, the mission of NRB has been to help protect and defend the rights of Christian media and to

ensure that the channels of electronic communication

stay open and accessible for Christian broadcasters to

proclaim the Gospel of Jesus Christ. Additionally, NRB

seeks to effectively minister to the spiritual welfare of

the United States of America through the speech it advances to the public.

Amicus American Family Association, Inc. (AFA)

is a non-profit, faith-based religious organization devoted to developing and fostering a biblical worldview

through radio programming. Its mission since 1977

has been to inform, equip, and activate people to

transform American culture and to give aid to the

church in its call to execute the Great Commission.

Through its broadcast division, AFA airs its programming to roughly 180 radio stations in over 30 states

across the country each week.

3

Amicus The Briner Institute, Inc. (TBI) is a network of like-minded individuals dedicated to improving culture through media and entertainment. TBI is

named in honor of author Bob Briner, whose vision was

for people to live their lives attempting to do good and

provide a positive influence on society. TBI provides

financial support for gatherings and talent development efforts through grants and donations, spotlighting people, projects, initiatives, and ventures of “saltand-light-inspired” people. TBI hosts events that are

focused on bringing together the best and the brightest

minds in entertainment, media, and technology to develop new strategies for achieving its mission of cultural engagement and influence.

Amicus Christian Professional Photographers

(CPP) is an organization devoted to encouraging and

training like-minded professional photographers who

are committed to the Christian faith. CPP connects

photographers across the country through conferences

and assists those professionals in obtaining excellence

in their field.

Amicus Eternal Word Television Network, Inc.

(EWTN) is the largest Catholic media outlet in the

world. Its television and radio broadcasting has

played an important role in educating others about the

Catholic faith since its founding in 1981. The network

attempts to strengthen the faith of Catholics and explain its views to non-Catholics as well. Since its inception, EWTN has expanded its television presence,

with 11 networks broadcasting in multiple languages,

24 hours a day, seven days a week, to over 300 million

4

households in more than 145 countries and territories.

EWTN’s broadcasts may be found almost anywhere on

the globe, reaching viewers on a wide range of traditional and emerging technologies.

Amicus Pinnacle Peak Pictures (PPP) is a production and theatrical distribution company dealing in

family, inspirational, and faith-based content. The company’s mission is to serve as a full-service production

outlet focusing on theatrical film and international television and video in the family and inspirational marketplace. PPP seeks to tell stories that are not only

entertaining and compelling, but to do so in a way that

the whole family can enjoy together. PPP is renowned

for its inspirational movies—such as God’s Not Dead

(2014)—and television series.

Amicus WallBuilders Presentations is a non-profit

organization dedicated to presenting America’s forgotten history and heroes, with an emphasis on the

moral, religious, and constitutional foundation on

which America was built. The heart of the organization’s efforts is educational work. WallBuilders has

collected thousands of first-edition works of America’s

Founding Fathers—including their own handwritten

documents—and the organization’s research focuses

primarily on these original sources. Based on its extensive research, WallBuilders has produced over two

dozen books and videos applying the lessons of America’s history to contemporary issues. These books and

videos not only present our nation’s rich heritage, they

also introduce the current generation of Americans to

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an uncensored view of America’s religious and political

history.

Amicus Bruce Marchiano is an actor, producer/

director, author, and ministry director best known for

portraying Jesus in more films than any actor in history. A 38-year veteran of the film industry, Marchiano

began his acting career in the 1980’s with guest roles

on classic television shows such as Murder She Wrote,

Colombo, L.A. Law, Hardball, General Hospital, and

Days of Our Lives. Currently, Marchiano is transitioning behind the camera, making his directorial debut in

the award-winning Alison’s Choice (2016). In 2021,

Marchiano completed principal photography on the

upcoming Biblical epic, The Gospel According to John,

currently in post-production and due for release in

2024. Off the set, Marchiano is the founder of Marchiano Ministries, a non-profit outreach ministry

largely involved in South Africa where Bruce has built

churches, conducted innumerable missions, and currently provides daily meals to hundreds of destitute

and HIV-affected children. As an author, Marchiano

has penned several books on the person of Jesus, including the bestselling In the Footsteps of Jesus.

Amici Cary Solomon and Chuck Konzelman are

film and television writers, producers, and directors

who serve as co-CEO’s of Believe Entertainment and

Soli Deo Gloria Releasing. They have been in the entertainment industry for thirty years and have done

feature projects for Warner Brothers, Paramount,

Sony-Columbia and Marvel Entertainment. The two

have also placed original-concept television pilots with

6

CBS, Fox, New Line Television, and Touchstone, as

well as cable projects with TNT and HBO. Their films

include the award-winning God’s Not Dead (2014) and

Unplanned (2019). Suppression of Unplanned by social media providers was so extensive that Mr. Solomon

and Mr. Konzelman were invited to testify before the

United States Senate in a hearing entitled “Stifling

Free Speech: Technology Censorship and the Public

Discourse.”

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

The Constitution guards individual rights in furtherance of “a tolerant citizenry.” Lee v. Weisman, 505

U.S. 577, 590 (1992). But such tolerance in “a pluralistic society * * * presupposes some mutuality of obligation.” Id. at 590–91. That mutuality of obligation

was recently emphasized in Obergefell v. Hodges, 576

U.S. 644 (2015). While Obergefell held that the Constitution does not allow government to prohibit samesex marriage, it also explained that the First Amendment rights of individuals who disagree must be “given

proper protection” by government. Id. at 679.

Lorie Smith and her company, 303 Creative LLC,

must now choose between her art and her conscience

because she has a view on marriage that Colorado will

not abide being promoted. This is not the “proper protection” Obergefell promised. And whether one agrees

with 303 Creative’s position or not is irrelevant—the

First Amendment protects diverse and conflicting

7

voices in the marketplace of ideas, especially on a public matter. Essential to American self-government is

preventing the coercive power of the state from foreclosing debate; the solution to speech with which one

disagrees is not to silence the speaker but to offer alternative views. It is only the organic result of competing ideas that may form the basis for legitimate

government. Colorado’s agreement with Petitioners’

speech is thus irrelevant—it is protected by the First

Amendment and must be allowed.

But Colorado doesn’t just stop there. Under the

panel opinion below, the Tenth Circuit allows for government censure of disfavored speech and the compulsion of other speech (if the speaker is going to

participate in the marketplace at all). Consequently,

the panel dissent noted that the scope of the majority’s

ruling is staggering and, “[t]aken to its logical end, 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.’ ” Pet.App.80a

(dissent at 30 (quoting majority opn. at 27)). And what

is true of artists is also true of speech “editors” such as

television studios, newspaper printers, or event organizers that work to ensure consistent messages from

their organizations. Taken to its logical conclusion, the

Tenth Circuit’s opinion allows for government control

in those areas as well.

Speech in America does not work that way. Speakers and artists may not be pressganged into carrying

water for the governmental party in power. And to

8

force amici to do so (or leave the public arena) would

signal the end of differing artistic voices in the film,

television, and radio industries—voices that are

already a distinct minority in their field. Thankfully,

such state-sponsored censorship and coercion has

already been rejected on multiple occasions by this

Court and should be rejected again here.

The judgment of the court of appeals should be

reversed.

---------------------------------♦---------------------------------

ARGUMENT

The First Amendment protects a diversity of viewpoints across all manner of media—everything from

art to broadcast productions to website design. This

diversity of speech is a necessary element of the marketplace of ideas that shapes society; and that speech,

in turn, is “the essence of self-government.” Dun &

Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.

749, 759 (1985). At present, though, the overreach of

Colorado’s anti-discrimination statute (at least as interpreted by the Tenth Circuit) threatens “the free and

robust debate of public issues.” Ibid. By chilling both

artists and groups that promote speech through various media outlets, the state law destabilizes the marketplace of ideas, cheapens the remaining speech, and

undermines self-government. As applied, CADA thus

ensures that “debate on public issues [will not] be uninhibited, robust, and wide-open,” and as a result is

9

unconstitutional. N.Y. Times Co. v. Sullivan, 376 U.S.

254, 270 (1964).

I.

The First Amendment Protects Various

Types Of Speech—Including Editorial Discretion—Across A Wide Range Of Media.

This Court has traditionally recognized free

speech protections for the messages of speakers across

a range of platforms and media. And the First Amendment’s protections apply equally to expression that

may not be literal speech. See Ward v. Rock Against

Racism, 491 U.S. 781, 790–91 (1989) (recognizing that

the First Amendment’s protections apply to regulations of music). Art in its various forms is “unquestionably shielded”—whether it is nonsensical poetry

(Lewis Carroll’s Jabberwocky), uncomfortable instrumentals (Arnold Schönberg’s atonal musical compositions), or incomprehensible paintings (Jackson Pollack’s

modern art). Hurley v. Irish-American Gay, Lesbian &

Bisexual Group of Boston, 515 U.S. 557, 569 (1995).

The First Amendment applies equally to speech

editors who serve as gatekeepers for groups or publications that want to ensure fidelity to certain messages. Hurley, 515 U.S. at 570–74 (noting that the

First Amendment does not “require a speaker to generate, as an original matter, each item featured in the

communication” and that editorial discretion is “enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expressions as

well as by professional publishers”). After all, editing

10

or producing is a “speech activity” entitled to First

Amendment protections.

Ark. Educ. Television

Comm’n v. Forbes, 523 U.S. 666, 674 (1998). In fact, it

is “no less communication than is creating the speech

in the first place.” Turner Broad. Sys., Inc. v. FCC, 512

U.S. 622, 675 (1994) (O’Connor, J., concurring in part

and dissenting in part). In exercising editorial discretion, the party engages in expressive conduct by determining which message is “worthy of presentation.”

Hurley, 515 U.S. at 575.

A group sponsoring a publication thus has a

vested interest in the message set forth by their particular publication. That interest includes not having

the general public confuse the publisher’s message

with any other messages an outsider may seek to

disseminate through the publication. See Manhattan

Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930

(2019) (“[W]hen a private entity provides a forum for

speech * * * [t]he private entity may * * * exercise editorial discretion over the speech and speakers in the

forum.”). That is why this Court has explained that

newspapers are “more than a passive receptacle or conduit for news, comment, and advertising,” but have

First Amendment rights related to their editorial decisions. Miami Herald Publ’g Co. v. Tornillo, 418 U.S.

241, 258 (1974). That is also why parade organizers

cannot be forced—under the guise of a public accommodation law—“to modify the content of their expression to whatever extent beneficiaries of the law choose

to alter it with messages of their own.” Hurley, 515

U.S. at 572. Free speech protection is not forfeited

11

through profit motives, either, as editors do not lose

their First Amendment rights even when they are paid

to convey information for third parties. Sullivan, 376

U.S. at 266.

Therefore, if the government seeks to compel a

newspaper to publish material to which the newspaper

objects, this interferes with the newspaper’s editorial

function and is a free speech violation. Tornillo, 418

U.S. at 258. Because editing involves “interpretation

and * * * selection,” there is a risk of “editorial suppression” by the government; the state cannot “force

abstention from discrimination in the news without

dictating selection.” Id. at 258 n.24 (quoting 2 Z.

Chafee, Government and Mass Communications 633

(1947)). And so the state cannot compel a newspaper

“to publish that which reason tells them should not be

published.” Id. at 256.2

2

Newspapers retain editorial discretion even when accused

of violating anti-discrimination laws. See Groswirt v. Columbus

Dispatch, 238 F.3d 421, 2000 WL 1871696, at *2 (6th Cir. 2000)

(invoking “free press right” in context of discrimination claim);

Johari v. Ohio State Lantern, 76 F.3d 379, 1996 WL 33230, at *1

(6th Cir. 1996) (invoking First Amendment in context of equal

protection claims); Melvin v. U.S.A. Today, No. 3:14-cv-00439,

2015 WL 251590, at *9 (E.D. Va. Jan. 20, 2015) (explaining that

selective news coverage, which was allegedly discriminatory, “lies

at the heart of editorial discretion protected by the First Amendment”); Rose v. Morning Call, Inc., No. 96-2973, 1997 WL 158397,

at *13 (E.D. Pa. Mar. 28, 1997) (invoking Tornillo in context of

discrimination claims and declining to issue injunction forcing

newspaper to run advertisement); Treanor v. Wash. Post Co., 826

F. Supp. 568, 569 (D.D.C. 1993) (explaining that applying public

accommodations requirements to newspapers “would likely be

inconsistent with the First Amendment”); cf. Sinn v. Daily

12

These same editorial freedoms are available in

other forms of media as well—television stations, radio

show producers, photography editing companies, and

Internet designers all engage in protected speech in

determining what their company produces. After all,

“whatever the challenges of applying the Constitution

to ever-advancing technology, ‘the basic principles of

freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.” Brown v.

Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011). To be sure,

there are some restrictions on editorial content—for

instance, there is no First Amendment protection

“when the commercial activity itself is illegal and the

restriction on advertising is incidental to a valid limitation on economic activity.” Pittsburgh Press Co. v.

Pittsburgh Comm’n on Hum Rels., 413 U.S. 376, 389

(1973). Publishers may also be subject to liability for

distributing unprotected speech such as libel. Sullivan, 376 U.S. at 279–80. Neither case is applicable

here. When dealing with protected speech regarding a

topic of public debate, media producers “exercise substantial editorial discretion in the selection and

presentation of their programming.” Forbes, 523 U.S.

at 673. This allows broadcasters to be afforded the

“widest journalistic freedom consistent with its public

Nebraskan, 638 F. Supp. 143, 146, 152 (D. Neb. 1986) (finding no

constitutional right to have housing ad printed that included

plaintiffs’ sexual orientation because it would usurp newspaper’s

editorial discretion).

13

obligations.” Columbia Broad. Sys., Inc. v. Democratic

Nat’l Comm., 412 U.S. 94, 119 (1973).

Editorial discretion thus serves as both a form of

speech and a protection against the message of the

speaker—the group or publication—being misconstrued by outsiders. This is why the state cannot force

citizens to “host or accommodate another speaker’s

message.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 63 (2006). Otherwise,

“[p]rivate property owners and private lessees would

face the unappetizing choice of allowing all comers or

closing the platform altogether.” Halleck, 139 S. Ct. at

1931. And so a Catholic television station—such as

amicus EWTN, for example—cannot be forced to host

a commercial promoting abortion. Like the organizer

of a parade or a newspaper publisher, the owner of that

station is ultimately responsible for (and inevitably

tied to) the speech produced in her studio. Consequently, the company must be allowed to have a say in

the content of what appears on the station because the

freedom of speech “necessarily compris[es] the decision

of both what to say and what not to say.” Riley v. Nat’l

Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796–97

(1988).3

3

This should not be confused with the potential First Amendment violation some states are attempting to curb through legislation that prevents online forums from censoring viewpoints

with which they disagree. See, e.g., HB 20, Tex. Civ. Prac. & Rem.

Code § 143A.002 (“Censorship Prohibited”), Dec. 2, 2021. While

a private company or individual—such as amici here—may exercise editorial discretion over speech that may be construed as the

company’s speech, the states argue that online platforms do not

14

II.

The Failure To Protect Diverse Speech

Short-Circuits The Exchange Of Ideas Essential To A Free Society.

The First Amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen.” Sullivan, 376 U.S. at 279. Government that is

representative of a free people demands no less. Janus

v. AFSCME, Council 31, 138 S. Ct. 2448, 2464 (2018)

(“Free speech * * * is essential to our democratic form

of government * * * * Whenever the Federal Government or a State prevents individuals from saying what

they think on important matters or compels them to

voice ideas with which they disagree, it undermines

those ends.”). Thus an individual’s right to speak on

public matters “is more than self-expression; it is the

essence of self-government.” Dun & Bradstreet, 472

U.S. at 759.

Free speech—necessary to a free people—protects

society through diverse speech creating competition

amongst ideas and preventing blind spots that develop

when operating in an echo chamber. In fact, the Constitution provides freedom of expression “in the hope

that use of such freedom will ultimately produce a

more capable citizenry and * * * in the belief that no

other approach would comport with the premise of individual dignity and choice upon which our political

have that same right. That is because the online platforms enjoy

legal immunity (under § 230 of the Communications Decency Act)

granted only because the platforms are, ostensibly, merely maintaining a public forum for others to speak. See 47 U.S.C. § 230.

15

system rests.” Cohen v. California, 403 U.S. 15, 24

(1971). That is why the very purpose of the First

Amendment’s Free Speech Clause—and among its

highest uses—is allowing opposing sides of a debate to

express themselves without censorship. See Roth v.

United States, 354 U.S. 476, 484 (1957).

As this Court has held, “[i]f there is a bedrock principle underlying the First Amendment, it is that the

government may not prohibit the expression of an idea

simply because society finds the idea itself offensive

or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414

(1989). That is especially critical in the debate in this

case—a topic over which this Court has recognized

that people of “good faith” are divided. Obergefell, 576

U.S. at 657. Indeed, Obergefell explicitly mentioned

that the First Amendment rights of individuals who

disagree with same-sex marriage must be “given

proper protection” by government. Id. at 679. Government involvement only short-circuits that process

and undermines the legitimacy of the viewpoint that

gains predominance.

Recent protests in Hong Kong highlight what happens when government silences unpopular viewpoints.

America is different, though. We err on the side of allowing more speech, not less, in order to ensure the exchange of ideas crucial to our society. This includes

protesting against war by wearing black armbands to

school, Tinker v. Des Moines Indep. Comm. Sch. Dist.,

393 U.S. 503 (1969), or against the draft by wearing

clothing with vulgar words, Cohen v. California, 403

U.S. 15 (1971). We even allow the burning of our

16

nation’s flag as a form of symbolic speech against some

aspect of the government with which one does not

agree. Johnson, 491 U.S. at 414. A diversity of viewpoints is encouraged as we believe that “each person

should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Agency for Int’l Dev. v. All. for Open Soc’y Int’l,

Inc., 570 U.S. 205, 213 (2013) (quoting Turner Broadcasting, 512 U.S. at 641). Our commitment to the free

exchange of ideas must continue to be upheld here.

III. Censorship Of The Protected Speech At Issue In This Case Undermines Editorial

Freedom For Amici And Other Speech Outlets That Contribute To Public Debate.

The Tenth Circuit’s damage to First Amendment

principles not only strips 303 Creative of its rights, it

also attacks amici’s speech and opens the door for

wide-ranging censorship in other areas. Indeed, because all speakers are unique, the Tenth Circuit’s logic

requiring access to any unique speech ensures that

any speaker may be banned in Colorado for failing to

promote the state-sponsored view. Pet.App.80a (dissenting opn. at 30 (quoting majority opn. at 27)). The

editorial freedom of speakers (such as amici) that currently adds to the public debate will be peeled away as

state-imposed orthodoxy is enforced. As a result, the

national debate on controversial topics will be impoverished as dissent on matters of public life becomes forbidden.

17

Amici require editorial freedom and discretion in

the projects they undertake in order to remain true to

their values and commitments. For instance, amici

Cary Solomon and Chuck Konzelman were asked early

in their careers to script a film called St. Lucifer. The

producer was an avowed atheist who wanted to make

a movie claiming that the devil was basically the unwilling and unwitting victim of a cosmic “frameup” executed by a jealous and malevolent entity—God.

Given their ability to craft feature-worthy content, as

well as their specific knowledge of biblical concepts and

a familiarity with theology, Mr. Solomon and Mr.

Konzelman were uniquely suited to make the film. But

they were able to decline handling the project; and

given the nature of the industry, appreciated not having to explain why they were passing. Yet under Colorado’s misguided notion of free speech, they could have

been forced to either make the film or find new jobs

since to turn down the atheist’s project would be

viewed by the Tenth Circuit as religious discrimination. See, e.g., Pet.App.69a (recognizing that, under

the majority’s reasoning, “the State could wield CADA

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”).

Alternatively, suppose that the United Church of

Christ sought to convert faithful Catholics to its position that abortion is permissible. Amicus EWTN (and

its affiliates around the world) would be the ideal medium for such a campaign given the network’s scope

18

and reach. The UCC might want to run advertisements in EWTN’s print arm—the National Catholic

Register—or on its Internet news websites—operating

under the Catholic News Agency and ACI (Agencia

Católica de Informaciones) brands. And following the

panel opinion here, the UCC would be allowed to scandalize the Catholic network in that manner or cause

EWTN to face charges of religious discrimination.

Such a result is obviously wrong, and violates the “central lesson of Hurley” by “compel[ling] affirmance of a

belief with which the speaker disagrees.” Pet.App.69a

(quoting Hurley, 515 U.S. at 573). In effect, removing

editorial discretion for media outlets in what they produce or air unconstitutionally allows the state to “alter

the expressive content” of the message the speaker

wishes to convey. Hurley, 515 U.S. at 572–73; see also

Halleck, 139 S. Ct. at 1931 (rejecting the claim that

government may force business owners to face the “unappetizing choice of allowing all comers or closing the

[business] altogether”).4

303 Creative is entitled to full First Amendment

protections even when offering its view on traditional

marriage: even—or especially—if that view is unpopular in Colorado. After all, “[i]t is firmly settled that

* * * the public expression of ideas may not be prohibited merely because the ideas are themselves offensive

to some of their hearers.” Street v. New York, 394 U.S.

4

Not only is there no need to force creative individuals into

using their platforms for speech to which they are opposed, allowing commissioned speakers to choose the content of their messages ensures more powerful and persuasive results.

19

576, 592 (1969). And “[t]he very purpose of a Bill of

Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond

the reach of majorities and officials, and to establish

them as legal principles to be applied by the courts.”

W. Va. State Board of Educ. v. Barnette, 319 U.S. 624,

638 (1943).

But under Colorado law, the company must affirm

same-sex marriage if it is to say anything in support

of traditional marriage. CADA thus puts artists and

editors to an unconstitutional choice: publish content

that goes against the speaker’s beliefs or remove content in that area all together. See Halleck, 139 S. Ct.

at 1931. The effect, of course, is a ban on the company’s

speech since it does not wish to give equal time to

both of those viewpoints. Yet Colorado need not

“burn[ ] the house to roast a pig.” Reno v. ACLU, 521

U.S. 844, 882 (1997). And the First Amendment will

not allow it anyway. As a private entity, 303 Creative

has the right to choose between messages, and this

Court has held that a government actor may not censor

that choice through speech compulsion. Tornillo, 418

U.S. at 258. Therefore, it is unconstitutional for Colorado to violate the company’s conscience by making it

promote same-sex marriage or leave the field altogether.

This is confirmed by the fact that 303 Creative’s

Internet-based platform ensures that it enjoys the

same freedoms that a newspaper, magazine, or book

publisher would have. Reno, 521 U.S. at 870; see also

U.S. Telecom Ass’n v. Fed. Commc’ns Comm’n, 855 F.3d

20

381, 427 (D.C. Cir. 2017) (Kavanaugh, J., dissenting

from denial of rehearing en banc) (“[F]oundational

First Amendment principles apply to editors and

speakers in the modern communications marketplace

in much the same way that the principles apply to the

newspapers, magazines, pamphleteers, publishers,

bookstores, and newsstands traditionally protected by

the First Amendment.”). Because it is undisputed

that a newspaper could not be forced to surrender its

editorial discretion to the state’s prerogative, Tornillo,

418 U.S. at 258, Petitioners may not be made to do so

either.

When speech that is so obviously protected is allowed to be censored, it threatens other speakers

(such as amici) that participate in the public debate

on controversial issues; it also chills any speech that

challenges common viewpoints in the public square.

These concerns are particularly relevant to publishers

and speakers who purposefully encourage “countercultural” speech in an effort to restore traditional, conservative principles to public life. This means amici’s

speech will necessarily be a dissenting voice in some

segments of the populace—a dissenting voice Colorado

continues to threaten across a wide range of mediums.

There is no warrant for such undermining of the public

debate and the Tenth Circuit’s contrary position is

simply wrong.

---------------------------------♦---------------------------------

21

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

JOHN C. SULLIVAN

Counsel of Record

S|L LAW PLLC

610 Uptown Blvd., Suite 2000

Cedar Hill, Texas 75104

john.sullivan@the-sl-lawfirm.com

469.523.1351 T

469.613.0891 F

Counsel for Amici Curiae

June 2022