Amicus Curiae Brief — Mobilize the Message, LLC, et al., Petitioners v. Rob Bonta, Attorney General of California

No. 22-865

IN THE

Supreme Court of the United States

————

MOBILIZE THE MESSAGE, LLC;

MOVING OXNARD FORWARD, IN., AND,

STARR COALITION FOR MOVING OXNARD FORWARD

Petitioners,

v.

ROB BONTA, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF CALIFORNIA,

Respondents.

____________________________________________________________________________________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICI CURIAE

AMERICANS FOR PROSPERITY FOUNDATION, REASON

FOUNDATION, AND THE FOUNDATION FOR INDIVIDUAL

RIGHTS AND EXPRESSION IN SUPPORT OF PETITIONERS

————

DARPANA SHETH

CYNTHIA FLEMING CRAWFORD

ABIGAIL E. SMITH

Counsel of Record

FOUNDATION FOR INDIVIDUAL CASEY MATTOX

RIGHTS AND EXPRESSION

AMERICANS FOR PROSPERITY

510 WALNUT STREET

FOUNDATION

SUITE 1250

1310 N. Courthouse Rd, Ste. 700

PHILADELPHIA, PA 19106

Arlington, VA 22201

(215) 717-3473

(571) 329-2227

DARPANA.SHETH@THEFIRE.ORG ccrawford@afphq.org

ABBY.SMITH@THEFIRE.ORG

Counsel for Amici Curiae

April 10, 2023

i

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE........................................1

SUMMARY OF ARGUMENT ............................................2

ARGUMENT...................................................................5

I.

AB5 REGULATES SPEECH AND DISTINGUISHES

BASED ON CONTENT. ............................................5

A.

AB5 Drives Freelance Expressive Work from

the Marketplace. ............................................... 7

B.

AB5 Is So Riddled with Exceptions It Failed to

Satisfy Rational Basis Review for Bona Fide

Commercial Activity. ........................................ 9

C.

AB5 Burdens Core Political Speech While

Exempting Commercial Speech. .................... 10

II. USING PUBLIC ACCOMMODATIONS LAW TO

COMPEL OR SILENCE SPEECH. .......................... 12

III. THE MONOPOLY ARGUMENT. ............................ 16

IV. BOLSTERING COMMERCIAL REGULATIONS THAT

DEPEND ON CONTENT THREATENS REED. ....... 17

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

303 Creative LLC v. Elenis,

6 F.4th 1160 (10th Cir. 2021), cert.

granted in part, 142 S. Ct. 1106 (Feb. 22,

2022) .................................................. 3, 12, 16, 17

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996) ........................................... 19

Am. Soc'y of Journalists & Authors, Inc. v.

Bonta,

15 F.4th 954 (9th Cir. 2021), cert. denied,

142 S. Ct. 2870 (June 27, 2022) ...................... 7, 8

Arlene’s Flowers, Inc. v. Washington,

141 S. Ct. 2884, cert. denied, 441 P.3d

1203 (Wa. 2019) .................................................. 4

Barr v. Am. Ass’n of Political Consultants,

Inc,

140 S. Ct. 2335 (2020) ....................................... 21

Cantwell v. Connecticut,

310 U.S. 296 (1940) ........................................... 19

Chelsey Nelson Photography, LLC v.

Louisville/Jefferson Cnty. Metro Gov't,

No. 3:19-CV-851-BJB, 2022 WL 3972873

(W.D. Ky. Aug. 30, 2022) .................................. 17

iii

Citizens United v. Fed. Election Comm'n,

558 U.S. 310 (2010) ..................................... 11, 21

City of Lakewood v. Plain Dealer Pub. Co.,

486 U.S. 750 (1988) ........................................... 21

De Wolf v. Ford,

86 N.E. 527 (N.Y. 1908) .................................... 13

Denver Area Educ. Telecomms. Consortium

v. FCC,

518 U.S. 727 (1996) ........................................... 12

Dynamex Operations West, Inc. v. Superior

Court of Los Angeles,

4 Cal. 5th 903 (2018) ........................................... 5

Frost v. R.R. Comm’n of State of Cal.,

271 U.S. 583 (1926) ........................................... 14

Heffron v. Int’l Soc. for Krishna

Consciousness, Inc.,

452 U.S. 640 (1981) ........................................... 19

Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Bos.,

515 U.S. 557 (1995) ........................................... 15

Klein v. Oregon Bureau of Labor and

Industries,

139 S. Ct. 2713 (2019) cert. granted,

judgment vacated, and remanded

410 P.3d 1051 (Or. 2017) .................................... 3

iv

Lamb’s Chapel v. Ctr. Moriches Union Free

Sch. Dist.,

508 U.S. 384 (1993) ........................................... 15

Lane v. Cotton,

88 Eng. Rep. 1458 (K.B. 1701)......................... 13

Masterpiece Cakeshop, Ltd. V. Colo. Civil

Rights Comm’n,

138 S. Ct. 1719 (2018) ................................... 3, 13

Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981) .......................................... 11

Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241 (1974) ........................................... 15

Michigan Pub. Utilities Comm’n v. Duke,

266 U.S. 570 (1925) ........................................... 15

Nat’l Collegiate Athletic Ass’n v. Alston,

468 U.S. 85 (2021) ............................................. 16

Nat’l Inst. of Family & Life Advocates v.

Becerra,

138 S. Ct. 2361 (2018) ....................................... 21

Ohralik v. Ohio State Bar Ass’n.,

436 U.S. 447 (1978) ........................................... 19

Olson v. California,

No. 21-55757, 2023 WL 2544853 (9th

Cir. Mar. 17, 2023) .................................. 5, 6, 7, 9

v

R. A. V. v. St. Paul,

505 U.S. 377 (1992) ........................................... 21

S. G. Borello & Sons, Inc. v. Dep’t of Indus.

Relations

48 Cal. 3d 341 (1989) .......................................... 5

United States v. Playboy Entm’t Group, Inc.,

529 U.S. 803 (2000) ........................................... 21

United States v. Stevens,

559 U.S. 460 (2010) ........................................... 20

Virginia Pharmacy Board v. Virginia

Citizens Consumer Council,

425 U.S. 748 (1976) ........................................... 11

Constitution

U.S. Const. Amend. I

..............................1, 2, 3, 9, 10, 11, 15, 16, 18, 21

U.S. Const. Amend. XIV........................................... 9

Statutes

Cal. Lab. Code § 2783(e) ........................................ 10

Cal. Unemp. Ins. Code § 650(a) ............................. 10

CO Rev. Stat. § 24-34-601 (2016)..................... 12, 14

CO Rev. Stat. § 24-34-601(2)(a) (2016) .................. 13

vi

Rules

Supreme Court Rule 37.2......................................... 1

Other Authorities

Americans for Prosperity (June 4, 2021)

https://americansforprosperity.org/ab5pro-act-hurtingworkforce/ ................................... 8

Isabelle Morales, List of Personal Stories of

Those Harmed by California’s AB5 Law,

Americans for Tax Reform (Dec. 22,

2020), https://www.atr.org/ab5/ .......................... 9

Black’s Law Dictionary 1677 (11th ed. 2019)........ 18

Brief of Americans for Prosperity

Foundation as Amicus Curiae

Supporting Petitioner, Cedar Point v.

Hassid,

No. 20-107 (January 5, 2021) ........................... 15

Suhauna Hussain, Vox Media cuts

hundreds of freelance journalists as AB 5

changes loom, L.A. Times (Dec. 17,

2019),

https://www.latimes.com/business/story/

2019-12-17/voxmedia-cuts-hundredsfreelancers-ab5 .................................................... 8

vii

Patrice Onwuka, California’s AB5 Triggers

Outcry From Independent Contractors,

Ind. Women’s Forum (Jan. 20, 2020),

https://www.iwf.org/2020/01/20/california

s-ab5-triggers-outcryfrom-independentcontractors-2/....................................................... 8

Joseph William Singer, No Right To

Exclude: Public Accommodations and

Private Property, 90 Nw. U.L. Rev. 1283,

1321 (1996) .................................................. 13, 14

1

BRIEF OF AMICI CURIAE

AMERICANS FOR PROSPERITY FOUNDATION, REASON

FOUNDATION, AND THE FOUNDATION FOR

INDIVIDUAL RIGHTS AND EXPRESSION

IN SUPPORT OF PETITIONERS

Pursuant to Supreme Court Rule 37.2, Americans

for Prosperity Foundation (“AFPF”), Reason

Foundation, and the Foundation for Individual Rights

and Expression (FIRE) respectfully submit this amici

curiae brief in support of Petitioners.1

INTEREST OF AMICI CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and empowering

Americans to address the most important issues

facing our country, including civil liberties and

constitutionally limited government. As part of this

mission, it appears as amicus curiae before federal

and state courts. Throughout our nation’s history, the

fight for civil rights has relied on the exercise of civil

liberties, which is one reason they must be protected.

AFPF is interested in this case because the protection

of the freedoms of expression and association,

guaranteed by the First Amendment, is necessary for

an open and diverse society.

Reason Foundation is a national, nonpartisan,

and nonprofit public policy think tank, founded in

1978. Reason’s mission is to advance a free society by

applying and promoting libertarian principles and

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

and no person other than amici or its counsel made any monetary

contributions to fund the preparation or submission of this brief.

Counsel for all parties were notified of amici’s intent to file this

brief greater than ten days prior to the date to respond.

2

policies—including free markets, individual liberty,

and the rule of law. Reason supports dynamic marketbased public policies that allow and encourage

individuals and voluntary institutions to flourish.

Reason advances its mission by publishing Reason

Magazine, as well as commentary on its websites, and

by issuing policy research reports. To further Reason’s

commitment to “Free Minds and Free Markets,”

Reason selectively participates as amicus curiae in

cases raising significant constitutional issues.

The Foundation for Individual Rights and

Expression (FIRE) is a nonpartisan, nonprofit

organization dedicated to defending the individual

rights of all Americans to free speech and free

thought—the essential qualities of liberty. Since 1999,

FIRE has successfully defended the rights of

individuals through public advocacy, strategic

litigation, and participation as amicus curiae in cases

that implicate expressive rights under the First

Amendment. See, e.g., Brief of FIRE as Amicus Curiae

in Support of Petitioner, Kennedy v. Bremerton Sch.

Dist., 142 S. Ct. 2407 (2022); Brief of FIRE as Amicus

Curiae in Support of Respondents, Mahanoy Area

Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021). FIRE is

interested in this case because the Ninth Circuit’s

opinion, if allowed to let stand, will further embolden

governments to promulgate unconstitutional limits on

speech under the guise of economic regulation.

SUMMARY OF ARGUMENT

Recent threats to free speech often come veiled as

regulation of economic activity; and the proposed

rationale for using such laws to limit or compel speech

increasingly relies on theories developed for the

regulation of commerce. Whether these laws are

3

backdoor attempts to regulate speech under the lesser

standard of rational basis review or are bona fide

commercial regulations that incidentally burden

speech—or can be creatively applied to do so—once

the First Amendment is implicated, any contentbased regulation must trigger strict scrutiny.

This case merits review by providing a clean

example of how economic regulation becomes contentbased regulation of speech when blindly applied to

speech-based activity.

Petitioners state that “California’s trick is to

reimagine speech serving a particular function or

purpose as a discrete economic activity.” California is

not alone in recasting speech as regulable activity to

expand the reach of commercial regulation. Variations

on this approach are endemic, rising to this Court

repeatedly in recent years. Just as common is the

revelation that nominally commercial laws are the

sheep’s clothing under which speech regulation—

often viewpoint specific—lurks to bite the unwary

speaker. And AB5 in many of its applications is no

different: enacted as a labor regulation but resulting

in a content-based regulation of speech.

Another frequent go-to form of regulation used to

police viewpoint is public accommodations law. The

public accommodations law that Colorado, for

example, employs to compel speech promoting the

State’s viewpoint has been before this Court on

previous occasions and may soon reach this Court

again. See, e.g., 303 Creative LLC v. Elenis, 6 F.4th

1160 (10th Cir. 2021), cert. granted in part, 142 S. Ct.

1106 (Feb. 22, 2022) (No. 21-476); Masterpiece

Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138

S. Ct. 1719 (2018) (No. 16-111). See also Klein v.

4

Oregon Bureau of Labor and Industries, 139 S. Ct.

2713 (2019) cert. granted, judgment vacated, and

remanded 410 P.3d 1051 (Or. 2017) (No. 18-547)

(similar under Oregon law); Arlene’s Flowers, Inc. v.

Washington, 141 S. Ct. 2884, cert. denied, 441 P.3d

1203 (Wa. 2019) (No. 17-208) (similar under

Washington law).

303 Creative is especially instructive because the

Tenth Circuit opinion floated another novel theory to

subject a speaker to commercial regulation: the idea

that an individual artist has a monopoly on her own

unique genius and is therefore a regulable monopoly.

Such threats to viewpoint should be resolved

under Reed v. Town of Gilbert, which declared not only

that content-based speech regulations are subject to

strict scrutiny but also whether a law is content

neutral on its face must be considered before turning

to the law’s justification or purpose. 576 U.S. 155, 256,

166 (2015). But the recent decision in City of Austin,

Texas v. Reagan National Advertising of Austin, LLC,

that an on-/off-premises distinction for billboards that

turns on the contents of the sign to determine whether

it relates to a specific location, is facially content

neutral and subject to intermediate scrutiny,

potentially risks opening another avenue for

regulating speech so long as the law does not single

out any topic or subject matter for differential

treatment. 142 S. Ct. 1464, 1466 (2022).

The move to recast speech as regulable commercial

activity seems limited only by the imagination of

legislatures and courts. Although these efforts have

been resisted with some success, the tide has yet to

turn and presents a persistent threat that merits

review by this Court.

5

ARGUMENT

I. AB5 REGULATES SPEECH AND DISTINGUISHES

BASED ON CONTENT.

AB5 codified the “ABC Test” set forth in Dynamex

Operations West, Inc. v. Superior Court of Los Angeles,

4 Cal. 5th 903 (2018), which categorizes workers as

employees or independent contractors. Olson v.

California, No. 21-55757, 2023 WL 2544853, at *2

(9th Cir. Mar. 17, 2023). Under Dynamex “‘a person

providing labor or services for remuneration shall be

considered an employee rather than an independent

contractor, unless the hiring entity’ makes the

requisite showing under the ABC test.” Id. at *3

(citing AB5 § 2(a)(1); Dynamex, 4 Cal. 5th at 967). This

test had the effect of expanding the definition of

employee to a broader range of workers, who had been

deemed independent contractors under the prevailing

multi-factor balancing test adopted in S. G. Borello &

Sons. Id at *2 n.2 (citing S. G. Borello & Sons, Inc. v.

Dep’t of Indus. Relations 48 Cal. 3d 341 (1989)).

But, from the beginning, AB5 exempted a wide

array of workers, including:

California

licensed

insurance

businesses or individuals, physicians

and surgeons, dentists, podiatrists,

psychologists, veterinarians, lawyers,

architects,

engineers,

private

investigators

and

accountants;

registered securities broker-dealers and

investment advisers; direct sales

salespersons; commercial fishermen

working on American vessels for a

limited period; marketers; human

resources administrators; travel agents;

6

graphic designers; grant writers; fine

artists; payment processing agents;

certain still photographers or photo

journalists; freelance writers, editors, or

cartoonists;

certain

licensed

estheticians, electrogists, manicurists,

barbers or cosmetologists; real estate

licensees;

repossession

agents;

contracting parties in business-tobusiness relationships; contractors and

subcontractors; and referral agencies

and their service providers. See A.B. 5 §

2. A.B. 5 also left open the possibility of

court-created exemptions.

Id. at *3 (citing AB5 § 2(a)(3)).

Shortly thereafter, AB5 was amended to include

exemptions for additional categories of workers:

newspaper distributor working under

contract with a newspaper publisher . . .

and a newspaper carrier working under

contract either with a newspaper

publisher or newspaper distributor;

as well as exemptions for,

recording artists; songwriters, lyricists,

composers, and proofers; managers of

recording artists; record producers and

directors; musical engineers and

mixers; vocalists; musicians engaged in

the creation of sound recordings;

photographers working on recording

photo shoots, album covers, and other

press and publicity purposes; and

independent radio promoters.

7

Id. (citing AB 170 § 1(b)(7) and AB 2257 § 2).

Many of these exemptions relate to speech-based

occupations, but some do not.

A.

AB5 Drives Freelance Expressive Work

from the Marketplace.

This petition is not AB5’s first trip to this Court.

Last spring, the American Society of Journalists and

Authors, petitioned for certiorari arguing that “[w]ith

the enactment of Assembly Bill 5 (AB5) in 2019,

California permits favored speaking professionals—

those engaged in ‘marketing’—to freelance while

burdening writers, photographers, and videographers

who produce other types of speech with onerous

financial burdens and regulations.” Petition for

Certiorari, 2022 WL 577005 at *3 (“ASJA Petition”),

Am. Soc’y of Journalists & Authors, Inc. v. Bonta, 15

F.4th 954 (9th Cir. 2021), cert. denied, 142 S. Ct. 2870

(June 27, 2022) (No. 21-1172) (“ASJA”). By exempting

particular speech and speakers from costly

regulations, AB5 necessarily disfavors all other

speech and speakers. The only way to know whether

the favorable or burdensome provisions apply is by

scrutinizing the content of the freelancer’s work. Id.

at *4. Accordingly, AB5 should have been reviewed

under strict scrutiny, which it could not satisfy. But,

because the Ninth Circuit considered that AB5 did not

reflect “a legislative content preference”, ASJA, 15

F.4th at 963, it skipped ‘the crucial first step in the

content neutrality analysis: determining whether the

law is content neutral on its face,” ASJA Petition,

2022 WL 577005 at *4 (citing Reed, 576 U.S. at 165),

and affirmed dismissal of ASJA’s suit as a rational

regulation of economic activity.

8

The Ninth Circuit’s failure to properly apply strict

scrutiny has been devastating for freelancers that fall

on the wrong side of AB5’s preference scheme. As

AFPF, filing with The Independent Institute, The

National Federation of Independent Business, and

New Jobs America, as amici explained, AB5 drove

freelance speech-creator jobs from the market, thus

reducing both the metaphorical marketplace of ideas

and the literal marketplace for paid speech.2 “For

example, in response to AB5, Vox Media cut ties with

more than 200 independent contractors and replaced

them with a mere twenty employees.” Id. at 9, n 12.3

“And speech-creator businesses, along with many

others, are leaving California and relocating to avoid

AB5’s impact.” Id. at 10 n 14.4 Burdening certain

Brief of The Independent Institute, National Federation of

Independent Business Small Business Legal Center, Americans

For Prosperity Foundation, and New Jobs America as Amici

Curiae Supporting Petitioners, 2022 WL 1250668 at *7–8, Am.

Soc'y of Journalists & Authors, Inc. v. Bonta, 15 F.4th 954 (9th

Cir. 2021), cert. denied, 142 S. Ct. 2870 (June 27, 2022) (No. 211172).

2

3 Citing Suhauna Hussain, Vox Media cuts hundreds of freelance

journalists as AB 5 changes loom, L.A. Times (Dec. 17, 2019),

https://www.latimes.com/business/story/2019-1217/voxmedia-cuts-hundreds-freelancers-ab5

4 Citing Karen Anderson, As with California’s disastrous AB 5

law, the PRO Act would hurt major sectors of the independent

workforce, Americans for Prosperity (June 4, 2021)

https://americansforprosperity.org/ab5-pro-acthurtingworkforce/ (listing examples);

Patrice Onwuka, California’s AB5 Triggers Outcry From

Independent Contractors, Ind. Women’s Forum (Jan. 20, 2020),

https://www.iwf.org/2020/01/20/californias-ab5-triggersoutcryfrom-independent-contractors-2/ (detailing interview with

writer who moved out of California due to AB5); cf. Isabelle

9

categories of speech, which can drive speech and

speakers from the market is an infringement of the

First Amendment that has had disastrous

consequences for some categories of speakers.

B.

AB5 Is So Riddled with Exceptions It

Failed to Satisfy Rational Basis Review

for Bona Fide Commercial Activity.

In Olson v. California, on review of a dismissal and

denial of a preliminary injunction, the Ninth Circuit

held “the exclusion of thousands of workers from the

mandates of A.B. 5 is starkly inconsistent with the

bill’s stated purpose of affording workers the ‘basic

rights and protections they deserve’” and on that basis

reversed dismissal of the Equal Protection claim.

Olson v. California, 2023 WL 2544853, at *2, 10.

In that case, Plaintiffs Uber Technologies,

Postmates, and individual drivers challenged the

constitutionality of AB5 because the vast array of

exemptions relieved similar companies of the burdens

of AB5 while applying it to Uber and Postmates. Id. at

*10. The district court had dismissed all claims and

denied the requested preliminary injunction. Id. at *5.

The Circuit Court, however, found that even applying

rational basis review Plaintiffs plausibly alleged AB5

violates the Equal Protection Clause for those

engaged in app-based, ride-hailing, and delivery

services. Id. at *10.

Morales, List of Personal Stories of Those Harmed by California’s

AB5 Law, Americans for Tax Reform (Dec. 22, 2020),

https://www.atr.org/ab5/

(collecting

655

testimonials

demonstrating how “California’s AB5 law . . . has destroyed

countless lives and driven people out of the Golden State”).

10

If AB5 fails rational basis review for distinctions

between bona fide commercial activities, that holding

surely casts doubt on the constitutionality of making

such distinctions based on speech.

C.

AB5 Burdens Core Political Speech

While Exempting Commercial Speech.

Here, the difference in treatment between favored

speakers and disfavored speakers is, if anything, more

troubling than either the speech-based distinctions

challenged in ASJA or the activity-based distinctions

challenged in Olsen. Disturbing as it may be for the

state to pick winners and losers among creative

professionals who speak for a living, when the state

burdens political speech, while deferring to

commercial speech, it turns First Amendment

protections on their head.

The carve-out from AB5 for direct sales

salespersons applies if an “individual . . . is engaged

in the trade or business of primarily in person

demonstration and sales presentation of consumer

products, including services or other intangibles, in

the home[.]” Cal. Lab. Code § 2783(e); Cal. Unemp.

Ins. Code § 650(a). Whatever ambiguity may lurk

around the edges of the commercial speech doctrine, 5

5 In his concurrence to Metromedia, Inc. v. City of San Diego,

Justice Brennan highlighted how fuzzy the edges of the

commercial speech doctrine are:

I would be unhappy to see city officials dealing

with the following series of billboards and

deciding which ones to permit: the first billboard

contains the message “Visit Joe’s Ice Cream

11

here, the exemption for door-to-door sales goes

straight to the heart of the doctrine: “I will sell you the

X prescription drug at the Y price.” Virginia

Pharmacy Board v. Virginia Citizens Consumer

Council, 425 U.S. 748, 761 (1976). Thus, had

California chosen to apply AB5 to door-to-door sales,

it presumably could have done so under Virginia

Pharmacy Board. But by exempting the one form of

speech it could regulate while presuming to regulate

other content, such as political speech, California has

placed itself crossways with the First Amendment,

even it did not intend to do so. Citizens United v. Fed.

Election Comm’n, 558 U.S. 310, 340 (2010) (noting

Shoppe”; the second, “Joe’s Ice Cream Shoppe

uses only the highest quality dairy products”; the

third, “Because Joe thinks that dairy products

are good for you, please shop at Joe’s Shoppe”;

and the fourth, “Joe says to support dairy price

supports; they mean lower prices for you at his

Shoppe.” Or how about some San Diego Padres

baseball fans—with no connection to the team—

who together rent a billboard and communicate

the message “Support the San Diego Padres, a

great baseball team.” May the city decide that a

United Automobile Workers billboard with the

message “Be a patriot—do not buy Japanesemanufactured cars” is “commercial” and

therefore forbid it? What if the same sign is

placed by Chrysler?

Metromedia, Inc. v. City of San Diego, 453 U.S. 490 at 538–39

(1981) (Brennan, J., concurring).

12

“political speech must prevail against laws that would

suppress it, whether by design or inadvertence”).

Here, one cannot escape the conclusion that AB5

has become a proxy for burdening some categories of

speech while privileging others; and, perhaps, that

such preferences are linked to the speaker’s identity.

II.

USING PUBLIC ACCOMMODATIONS LAW

COMPEL OR SILENCE SPEECH.

TO

Regulating speech under the ambit of employment

law is just one of the creative ways regulating

commercial activity can morph into regulation of

speech while clinging to a more readily satisfied

standard of review.

Common carrier laws have long been applied to

require transportation of third-party speech. See, e.g.,

Denver Area Educ. Telecomms. Consortium v. FCC,

518 U.S. 727 (1996). But lately, its brethren doctrine,

public accommodations law, has been pressed into

service as a means not only to require traditional

provision of generally-available products and services,

but also to require individual speakers to create and

deliver messages with which they disagree.

This Court recently heard 303 Creative, which

challenged Colorado’s application of its public

accommodations law6 to a website designer’s bespoke

creations, No. 21-476. The Colorado statute at issue

CO Rev. Stat. § 24-34-601 (2016) [hereinafter “CADA”]

(defining “place of public accommodation” as “any place of

business engaged in any sales to the public and any place offering

services, facilities, privileges, advantages, or accommodations to

the public” and “discriminatory practice” as withholding or

denying the full and equal enjoyment of “a place of public

accommodation.”).

6

13

guarantees access to public accommodations to

various enumerated groups and individuals, declaring

it unlawful to refuse “to an individual or a group,

because of disability, race, creed, color, sex, sexual

orientation, marital status, national origin, or

ancestry, the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or

accommodations of a place of public accommodation.”

CO Rev. Stat. § 24-34-601(2)(a) (2016).

Although this provision could easily be squared

with longstanding protections for paid expression and

professional speech, Colorado has gone to great

lengths to interpret its law to compel speech-based

creation and artistic endeavors by conflating the

characteristics of the prospective customer with the

characteristics of the requested service. E.g.,

Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n,

138 S. Ct. 1719, 1725–26 (2018).

Public accommodations, far from being a

newfangled invention of regulatory law, have a long

history, with certain types of businesses, such

blacksmiths and inns, traditionally seen as “public

accommodations.” See De Wolf v. Ford, 86 N.E. 527,

529 (N.Y. 1908) (“For centuries it has been settled in

all jurisdictions where the common law prevails that

the business of an innkeeper is of a quasi-public

character, invested with many privileges, and

burdened

with

correspondingly

great

responsibilities[.]”); Joseph William Singer, No Right

To Exclude: Public Accommodations and Private

Property, 90 Nw. U.L. Rev. 1283, 1321 (1996) (citing

Lane v. Cotton, 88 Eng. Rep. 1458 (K.B. 1701)).

Certain similarities among these businesses, such as

reliance by travelers on inns and blacksmiths to

14

ensure their safety, justified imposing certain duties

to the public that were not imposed on other

businesses. See id. at 5; Singer, 90 Nw. U.L. Rev. at

1292 (“[N]ecessity required special obligations to

protect travelers from hardship when they had no

place to sleep at night and were vulnerable to bandits

on the highways.”).

Modern statutes, such as CADA, while extending

the definition of public accommodation to a variety of

businesses, facilities, and locations7 do not purport to

lump individual speakers—regardless how creative—

into the definition of a public accommodation.

Nevertheless, they have been applied as if they do.

But the extended duties of certain types of

enterprises, such as ferries, railways, and carters,

each of which carries goods or persons for hire, limit

government’s ability to impose common carrier

designation involuntarily or by fiat. Frost v. R.R.

Comm’n of State of Cal., 271 U.S. 583, 593 (1926)

(“[T]he power to compel a private carrier to assume

Under CADA, place of public accommodation incudes, but is

not limited to “any business offering wholesale or retail sales to

the public; any place to eat, drink, sleep, or rest, or any

combination thereof; any sporting or recreational area and

facility; any public transportation facility; a barber shop,

bathhouse, swimming pool, bath, steam or massage parlor,

gymnasium, or other establishment conducted to serve the

health, appearance, or physical condition of a person; a campsite

or trailer camp; a dispensary, clinic, hospital, convalescent home,

or other institution for the sick, ailing, aged, or infirm; a

mortuary, undertaking parlor, or cemetery; an educational

institution; or any public building, park, arena, theater, hall,

auditorium, museum, library, exhibit, or public facility of any

kind whether indoor or outdoor.” CO Rev. Stat. § 24-34-601

(2016).

7

15

against his will the duties and burdens of a common

carrier, the state does not possess.”). Any attempt by

a state to do so implicates the constitutional rights of

the carrier. See id. at 592; Mich. Pub. Utils. Comm’n

v. Duke, 266 U.S. 570 (1925) (statute making persons

transporting property over public highways common

carriers violated due process of private carriers).

Artists and other speech-based professionals have

none of the characteristics that delineate a common

carrier or public accommodations under common law.

And this Court has rejected the notion that wholly

private actors may be deemed mere conduits for the

speech of others, losing their right to control the use

of their own property. See Lamb’s Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384, 390

(1993). Thus, private entities such as newspapers,

retain First Amendment protection—even from being

compelled to include speech clearly attributable to

someone else. Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241, 258 (1974). These protections are not

limited to the press but apply equally outside the

media. E.g., Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Bos., 515 U.S. 557, 575–76 (1995).

Even in Pruneyard Shopping Center v. Robins, the

highwater mark for state power to compel private

parties to host the speech of others,8 the Court based

its holding on narrow facts: (1) the shopping center

was open to the public to come and go as they please

and thus “views expressed by members of the public .

. . will not likely be identified with those of the owner”;

(2) “no specific message is dictated by the State” and

Amicus AFPF has previously argued the Court should

reconsider Pruneyard. See Amicus Br. of AFPF 19, Cedar Point

v. Hassid, No. 20-107 (filed January 5, 2021).

8

16

thus there was “no danger of governmental

discrimination for or against a particular message;”

and (3) “appellants can expressly disavow any

connection with the message” . . . “disclaim[ing] any

sponsorship of the message” and “explain[ing] that

the persons are communicating their own messages

by virtue of state law.” 447 U.S. 74, 87 (1980).

Despite being at-odds with centuries of common

law, public accommodations law has been stretched to

reach speech under the guise of regulating commerce

and presents one of the most pressing threats to the

First Amendment.

III.

THE MONOPOLY ARGUMENT.

The Tenth Circuit opinion in 303 Creative

presented another novel approach to subsuming

speech under a form of commercial regulation by

asserting that “due to the unique nature of

Appellants’ services, this case is more similar to a

monopoly. 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 Appellants.’ In that market, only

Appellants exist.” 6 F.4th at 1180. The court

presented no authority for the novel concept that an

individual person or company becomes a monopoly

simply because it is unique.

This approach is inconsistent with traditional

concepts of monopoly or restraint of trade doctrine,

which focus on whether there are viable substitutes

for a seller’s goods or services. Nat’l Collegiate Athletic

Ass’n v. Alston, 468 U.S. 85, 111 (2021). Mere

differences between two products does not place them

in separate relevant markets—and a customer’s

17

preference for a specific product does

automatically render its seller a monopolist.

not

Although this theory has achieved limited traction

since 303 Creative was decided by the Tenth Circuit,

at least one other state has tried to use it to justify

compelling speech. See Chelsey Nelson Photography,

LLC v. Louisville/Jefferson Cnty. Metro Gov’t, No. 19851, 2022 WL 3972873 (W.D. Ky. Aug. 30, 2022).

IV.

BOLSTERING COMMERCIAL REGULATIONS

THAT DEPEND ON CONTENT THREATENS

REED.

Under Reed, the disposition of this case would be

straightforward. In Reed, the Court based its analysis

on the principle that “Government regulation of

speech is content-based if a law applies to particular

speech because of the topic discussed or the idea or

message expressed.” Reed, 576 U.S. at 163 (citations

omitted). There are no hidden mouseholes in this rule

or subtle terms of art to trap the unwary. Rather, the

definition of “content-based” is the “commonsense

meaning of the phrase” that “requires a court to

consider whether a regulation of speech ‘on its face’

draws distinctions based on the message a speaker

conveys.” Id. at 163–64 (citations omitted).

To the extent this Court’s recent decision in City of

Austin v. Reagan National Advertising may be

interpreted as limiting the straightforward holding of

Reed by distinguishing between content-based

regulations that discriminate based on “the topic

discussed or the idea or message expressed,” Reed,

576 U.S., at 171” and “restrictions on speech [that]

may require some evaluation of the speech and

nonetheless remain content neutral.” 142 S. Ct. at

1473, such an interpretation should be avoided.

18

Reagan National, rejected the “view that any

examination of speech or expression inherently

triggers heightened First Amendment concern.” Id. at

1474.

As Justice Thomas warned in dissent, “there is no

principled way to decide whether a category of

communicative content is ‘substantive’ or ‘specific’

enough . . . to deem it a ‘topic’ or ‘subject’ worthy of

heightened protection.” 142 S. Ct. at 1486 (Thomas, J.

dissenting). This case provides an example that

Justice Thomas’s doubt is not hypothetical when the

difference between political speech and commercial

solicitation—two categories of speech with long lines

of precedent—cannot be distinguished from each

other based on content This case demonstrates the

pitfalls that courts create if they interpret Reagan as

a limitation on Reed.

Reagan also rested on a secondary consideration,

the “distinctions between on-premises and off

premises signs,” that the Court has held to be content

neutral. Id. at 1488. That consideration does not apply

here and should be used to cabin Reagan to its facts.

Instead, the Court’s treatment of solicitation leads

to a different outcome. The Court has held that, “the

First Amendment allows for regulations of

solicitation—that is, speech ‘requesting or seeking to

obtain something’ or ‘[a]n attempt or effort to gain

business.” Id. at 1473 (citing Black’s Law Dictionary

1677 (11th ed. 2019)). And “the Court has reasoned

that restrictions on solicitation are not content based

and do not inherently present ‘the potential for

becoming a means of suppressing a particular point of

view,’ so long as they do not discriminate based on

topic, subject matter, or viewpoint.” Id. (citing Heffron

19

v. International Soc. for Krishna Consciousness, Inc.,

452 U.S. 640, 649 (1981)). But where such

discrimination occurs, the Court has not hesitated to

invalidate a statute prohibiting solicitation for

religious causes, even though the States would have

been “free to regulate the time and manner of

solicitation generally, in the interest of public safety,

peace, comfort or convenience.” Id. (citing Cantwell v.

Connecticut, 310 U.S. 296, 306–307 (1940)).

Here there is no dispute that solicitation is

involved. The only issue is whether the solicitation is

political or commercial, which necessarily must be

analyzed based on content. When a door is opened and

a solicitor begins speaking, perhaps offering a piece of

literature, there is no way to determine whether AB5

applies without the speech being examined. This

presents a similar issue to Reagan, without the

historical billboard gloss, but with the perverse

outcome that here commercial speech is unburdened

but political speech is.9 Either way, strict scrutiny

9 Applying a lower level of scrutiny to commercial speech only

ever made sense if one had independent knowledge that the

speaker was engaged in regulable business activity such that the

associated speech was part of that activity. See 44 Liquormart,

Inc. v. Rhode Island, 517 U.S. 484, 499 (1996) (“[T]he State’s

power to regulate commercial transactions justifies its

concomitant power to regulate commercial speech that is ‘linked

inextricably’ to those transactions.”); Ohralik v. Ohio State Bar

Ass’n., 436 U.S. 447, 456 (1978) (commercial speech “occurs in an

area traditionally subject to government regulation”).

20

should apply because both categories of speech are

protected, albeit at different standards.10

This outcome is in direct contrast to the Court’s

holding in City of Cincinnati v. Discovery Network,

Inc., in which the issue was whether the city’s ban on

newsracks “that distribute ‘commercial handbills,’ but

not ‘newspapers,’” was content-based. 507 U.S. 410,

429 (1993). There, the city asserted that “its

regulation of newsracks qualifie[d] as [a non-contentbased] restriction because the interests in safety and

esthetics that it serves are entirely unrelated to the

content of respondents’ publications.” Id. But the

Court was unpersuaded because “the very basis for

the regulation is the difference in content between

ordinary newspapers and commercial speech.” Id.

Like AB5, which requires analyzing the content of the

speech or literature to determine which category of

regulation applies, “[u]nder [Cincinnati’s] newsrack

policy, whether any particular newsrack falls within

the ban is determined by the content of the

publication resting inside that newsrack.” Id.

Moreover, AB5 distinguishes among speakers,

allowing greater flexibility to those who represent a

commercial interest from those who do not. “This

Court’s precedents are deeply skeptical of laws that

10 As Justice Thomas noted in dissent in Reagan “For several

categories of historically unprotected speech, including

obscenity, defamation, fraud, incitement, and speech integral to

criminal conduct, the government ordinarily may enact contentbased restrictions without satisfying strict scrutiny.” 142 S. Ct.

at 1482 n. 1 (citing United States v. Stevens, 559 U.S. 460, 468–

469 (2010)).

21

distinguish among different speakers, allowing

speech by some but not others.” Citizens United v. Fed.

Elec. Comm’n, 558 U.S. 310, 340 (2010) (cleaned up).

Speaker-based laws run the risk that “the State has

left unburdened those speakers whose messages are

in accord with its own views.” Nat’l Inst. of Family &

Life Advocates v. Becerra, 138 S. Ct. 2361, 2378 (2018)

(cleaned up). See also City of Lakewood v. Plain Dealer

Pub. Co., 486 U.S. 750, 763–64 (1988) (“[A] law or

policy permitting communication in a certain manner

for some but not for others raises the specter of

content and viewpoint censorship.”).

This approach triggers strict scrutiny, Barr v. Am.

Ass’n of Political Consultants, Inc, 140 S. Ct. 2335,

2347 (2020) (robocall restriction with the governmentdebt exception was content-based and subject to strict

scrutiny); is “presumptively invalid,” United States v.

Playboy Entertainment Group, Inc., 529 U.S. 803, 817

(2000) (internal quotation marks omitted), and may

generally be upheld only if the government proves

that the regulation is narrowly tailored to serve

compelling state interests, R. A. V. v. St. Paul, 505

U.S. 377, 395 (1992). The very exercise of drafting a

rule to distinguish between content involves

government in a process that the First Amendment

forbids—prioritizing some messages over others.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari.

22

Respectfully submitted,

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-2227

ccrawford@afphq.org

DARPANA SHETH

ABIGAIL E. SMITH

FOUNDATION FOR INDIVIDUAL

RIGHTS AND EXPRESSION

510 Walnut Street

Suite 1250

Philadelphia, PA 19106

(215) 717-3473

darpana.sheth@thefire.org

abby.smith@thefire.org

Counsel for Amici Curiae

April 10, 2023