Month: January 2025

For the next few blog posts, there will be a deep dive into the argumentation of the case 303 Creative LLC v. Elenis. The case involves a graphic designer who wanted to expand her business to include wedding websites. However, before doing so, she challenged the legislation in their state in order to post a message on her website stating that she would not create websites for same-sex couples. The deep dive will involve examining the precedents one case at a time.

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston Inc. is a case from the 1990s that revolves around the concepts of freedom of speech and public accommodation. For decades, the St. Patrick’s Day and Evacuation Day celebrations in Boston were combined into a single “St. Patrick’s Day – Evacuation Day Parade.” From 1947, the event was always organized by a group called the South Boston Allied War Veterans Council (later “the Council”). Each year, they were the only group to apply to be the organizer. In 1992 and 1993, the Irish-American Gay, Lesbian and Bisexual Group of Boston Inc. (later “GLIB”) applied to participate in the Parade but was denied. The issue in this case is whether including GLIB would violate the freedom of speech of the Parade organizers, or whether excluding them violates public accommodation law.

The lower courts ruled in favor of GLIB, but the Supreme Court overturned the decision, ruling that mandating GLIB’s inclusion in the Parade would violate the First Amendment, as it would compel the Parade organizers to convey a message they did not agree with. The Court stated that it might be a different case if GLIB were only being denied the ability to spectate the Parade. However, as participants, GLIB’s message would become part of the Parade’s message. Therefore, the Council had the right to deny their application, as forcing the Parade to convey that message would be unconstitutional. In lower courts, it was argued that the lack of clear criteria for participants meant the Parade had no specific message, and including GLIB wouldn’t contradict any existing message. The Supreme Court disagreed, ruling that excluding some participants sends a message in itself, and GLIB’s participation would alter that message. The decision was unanimous, with no dissenting or concurring opinions.

Hurley is often cited in the case of 303 Creative, especially in the majority opinion written by Justice Gorsuch. This is not surprising, as the cases have many similarities. In both cases, the excluded party is from the LGBTQ+ community, and the central issue is weighing freedom of speech against public accommodation laws. Both cases also raise the question of whether the exclusion of a party falls under the protection of free speech. 

Justice Gorsuch uses Hurley effectively in his argument. The quotes and references are relevant to both cases and integrate smoothly into his text. However, in the dissenting opinion, Justice Sotomayor offers strong counterarguments about why Hurley might not be as relevant in this context. One key issue is that the laws don’t apply in the same way to commercial and non-commercial situations, which is a major difference between the two cases, as 303 Creative involves a business owner refusing service. Additionally, Sotomayor argues that while GLIB’s participation in the Parade would affect its message, the websites in 303 Creative could be nearly identical to those of heterosexual couples. The creator of the website wouldn’t have to include any message they don’t approve of, and thus wouldn’t be compromising their freedom of speech. I believe this is the key difference between the two cases.

As an outsider to the US legal system, more familiar with civil law than common law, I acknowledge that my opinions may not always be as well-founded as they could be. That said, one of the challenges of case law is that no two cases are exactly the same. It often seems impossible to objectively determine which case serves as the most fitting precedent, and when differences are too significant for an older case to be applied in a new context. In this case, I think Sotomayor makes a strong argument that Hurley should not be used as a precedent. However, there are enough key similarities between Hurley and 303 Creative, combined with other cases, that I can see it being comparable. On its own, though, without other cases to balance its differences, it doesn’t provide a solid foundation for argumentation.

As mentioned earlier, the ruling in Hurley was unanimous. This invites some speculation, but I believe that if the case were judged today, there would likely be a dissenting opinion. It seems peculiar that, while ideologies do change, the guiding principles of the Court are often based on cases decided by nine justices in the 20th century. I’m not suggesting that these nine justices were unqualified or made the wrong decisions, or that these cases should be retried today. It’s just that attitudes toward certain minorities—such as the LGBTQ+ community—have changed drastically over time, and those shifts could influence current judgments. As we saw with Roe v. Wade, it is certainly possible to overturn an old precedent, though that doesn’t happen often.

Even when a case is overturned, its influence doesn’t disappear. In many ways, older cases are even more valuable than newer ones because they’ve shaped the decisions of all the cases that came after them. Overturning one precedent could lead to the reconsideration of hundreds of others. For example, West Virginia Bd. of Ed. v. Barnette is cited in Justice Gorsuch’s opinion in 303 Creative, and it also appears in the Hurley case and is mentioned briefly in the consideration of Boy Scouts of America v. Dale. These three cases are the core precedents in the Court’s opinion in 303 Creative, showing how far-reaching the influence of Barnette is, even though it may seem less significant at first glance. This doesn’t mean I disagree with the ruling in Barnette—it’s just a great example of how influential a case from the 1940s can be.

The Supreme Court is often accused of being politicized, as some high-profile cases have seen justices clearly divided along ideological lines. The nomination process has also been a topic of intense debate, as the importance of the political views of the justices is not lost on anyone. With Trump’s second term, there has been talk that two justices may retire, knowing that their replacements would be nominated by a Republican president. This would mean that one person could have nominated five out of nine justices who decide some of the country’s most important legal issues. The rulings of the Supreme Court will continue to affect each case that comes after them, raising the question: is it too much power for any one person to hold?

Team 303 Non-creative

Introduction

The Boy Scouts of America (BSA) v. Dale 530 U. S. 640 (2000) is a significant precedent of the U.S. Supreme Court in terms of interpreting the First Amendment, particularly the interplay between public accommodations law and expressive associations. One party of the disagreement, Dale, claimed that he was being discriminated against in places of public accommodation on the basis of his sexual orientation. On the other hand, however, the BSA argued that, as a private and expressive organization, it aims to instill certain moral values in young people, and that homosexuality is against those values, so under the First Amendment it has a right to exclude. In my view, by holding in favor of the BSA’s argument, the Supreme Court implies that one can enjoy the freedom of speech as a trump card against the prohibition of discrimination, and associations have a broad discretion to identifying the group’s inclusion as well. The Supreme Court’s legal reasoning in this case is not only still valid but also has been extended when assessing the scrutiny of the First Amendment.

“On My Honor”: Public Accommodations vs. Expressive Associations

James Dale was an assistant scoutmaster. In college, Dale came out as gay and became the co-president of a LGBTI+ community, and a gay rights activist. The BSA, of which Dale had been a member since the age of eight, dismissed him as scoutmaster and revoked his membership after learning that he was homosexual. The BSA sent a letter saying that membership of the organization is a privilege that if an individual doesn’t have capacity to meet those high standards, his membership may be denied. The association claimed that Dale’s presence in scouting, which had been a meaningful part of his life, was not consistent with its mission that promoting or cultivating decent values on young people.

Dale argued that he had never heard of any such policy that homosexual individuals must not be included in the BSA and therefore sued it on the ground of New Jersey anti-discrimination law. The statute recognizes a civil right that “all persons shall have the opportunity to obtain privileges of any place of public accommodation […] without discrimination because of […] sexual orientation.” However, the BSA objected that the public accommodations law’s requirements cannot be applied to the organization as it is a distinctly private group which has a right to exclude through the benefits of freedom of association. Drawing upon the First Amendment, the BSA argue that, as an expressive association, they emphasize, in their Scout Oath and Law, only the morally straight and clean person can involve this community, and homosexuality has historically always been a cause for avoidance.

Even though The New Jersey Supreme Court held that public accommodations law requires that the BSA readmit Dale and his presence would not significantly affect to convey the group’s message, The Federal Supreme Court reversed the claim of discrimination and decided that the State cannot force the BSA to accept or reject whose involvement should be revoke or what kind of behaviors ought to stamp out as morally wrong. According to the 5-4 majority of the Court, applying public accommodations law in this case violates the BSA’s First Amendment right of expressive association.

Chief Justice William Rehnquist who delivered the majority opinion, identified that associations do not merely have to associate for the “purpose” of spreading a specific message to be entitled to the protections of the First Amendment. If such an association endorses an expression through its activities, it would also be within the scope of the First Amendment to impose obligations that would prevent it from adhering to that expression.

Although Justice Stevens, in the dissenting opinion, contended that the states should have a broad discretion to interpret its interest arising from the public accommodations law and that intermediate scrutiny could therefore be invoked, the Supreme Court held that the state’s interest in terms of anti-discrimination law fails to justify a severe intrusion on the freedom of expressive association. The First Amendment’s strict scrutiny standards prohibit the state from imposing requirements at stake through the application of the public accommodations law.

The Court applies double judicial deference that one is identifying of the meaning of the immoral behavior and the other is Dale’s presence’s impact on the organization’s message that would send both their members and the world. The Court’s argument, facially, morally skeptic. The terms “morally straight” and “clean” should not be defined by the Court but rather be respect to the association’s own agency. Even if it is argued that neither Scouts be “morally straight” and “clean” don’t say the slightest thing about homosexuality nor Dale’s involvement would not affect the impersonality of the association, the Court finds the examination of such arguments to be an interference with the association’s freedom of speech.

Public Accommodations Law is Getting Looser: 303 Creative

The BSA v. Dale holding has been crucial in a number of judgements in which the Court has interpreted freedom of speech in the context of public accommodations law. In a very recent case, 303 Creative LLC v. Elenis 600 U. S. ____ (2023), the Supreme Court made an analogy with the BSA that freedom of speech is applicable not only in the case of pure speech but also expressive associations. Accordingly, the government is not permitted to interfere with the message it intends to convey to anyone, even if it considers that “message to be reasonable and well-intentioned or deeply ‘misguided’”. If the group accepted “propound a point of view according to its beliefs” to prerequisites of membership, the government should not compel to speech anyone consistent with the Constitution.

In 303 Creative, the dissent justices objected to apply Dale precedent because private and non-profit organization’s freedom of speech protections should be distinguished with “clearly commercial entities”. No company can declare that it rejects selling services or goods to any member of the public because of sexual orientation. However, in the majority’s view, the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit such as website designers. In this way, the prohibition of discrimination is withdrawn not only by private associations but also by commercial entities in favor of the freedom of speech argument since one cannot force to disseminate a message that is not to be believed.

Conclusion

Freedom of speech is an essential value of modern plural democratic societies. Yet, another fundamental principle is the right to equal citizenship that is institutionalized through the prohibition of discrimination. The Supreme Court tends to limit the active action of the states or governments by recognizing that compelling a person to speak in accordance with the guarantee of equal citizenship would conflict with freedom of speech. Indeed, it has held that not only pure speech, but also associations in which a message is disseminated as well as entities selling commercial goods or services can benefit the supremacy of the freedom of speech. Likewise, the Court grants primacy to the approach of the speaker without examining how a statement is to be interpreted and who is to be excluded.

Team 303 Non-creative

Christian Legal Society v. Martinez (2010) is going to be explored here, addressing the balance between religious freedom and anti-discrimination policies in public institutions. Creative 303 will be looked into as well in relation to the precedent.

Oooou lemme tell you about the case 

Ok, so in the case of Christian Legal Society v. Martinez, the issue was whether a public university requiring student organisations to accept all students regardless of their beliefs as a condition for official recognition was a violation of the constitution, in particular the 4th amendment???. Well, this came about due to the fact that the University of California, Hastings College of the Law, denied recognition to the Christian Legal Society (CLS) because their membership policies required students to support a statement of faith and abstain from same-sex relationships.

Hastings enforced an “all-comers” policy, requiring all recognised student groups to allow any student to join, regardless of their views and beliefs,

But hold up… the CLS argued that this policy violated its First Amendment rights to free speech, association, and religious exercise!!!!!

The holding??

Well, in the Christian Legal Society v. Martinez case, the Supreme Court did rule in favour of Hastings and not CLS. The uni’s all-comers policy was a reasonable and neutral policy. It did not, emphasis on did not, violate the First Amendment of the constitution but was consistent with it. The court found that the unis neutral and generally applicable policy, which will apply equally to all the student organisations, was justified by the unis compelling interest to prevent discrimination.

Hostile?

Yes, in the Martinez case, there were disagreements with the justices. Both Justice Stevens and Kennedy support the decision in favour of Hastings. Whereas dissent’s view (Justice Alito) is against this judgement and believes that by refusing to grant CLS an exemption from the Non-discrimination Policy, Hastings violated CLS’s rights in relation to the first amendment. 

Let’s talk 303 creative and CLS V Martinez linkinggg 

One of the most significant ways the justices applied Martinez was in distinguishing the public nature of the institution involved in Martinez (public university) from the private business involved in 303 Creative. In the 303 Creative case, the Court looked at the private nature of the business involved. Lorie Smith, the owner of 303 Creative, argued that being forced to design wedding websites for same-sex couples would compel her to express a message going against religious beliefs. The Court concluded that, while anti-discrimination laws are important, they cannot override the First Amendment rights of a private individual or business engaged in expressive conduct.

Wrap it up

The significance of the case to the general understanding of what went on in the US back then is that during 2010, the United States was experiencing a period of cultural and legal shifts, especially regarding LGBTQ+ rights. At the time, same-sex marriage had not been legalised in all 50 states, and LGBT rights had not been fully accepted yet. The fight for LGBTQ+ equality was gaining momentum, while conservative religious groups were pushing back, emphasising their right to religious expression and freedom. Therefore, this case could highlight the attitudes towards LGBTQ rights and the tension between religious freedom and anti-discrimination protections for LGBTQ people at the time.

In addition, the significance of this case to what goes on at the moment is that religious opposition to LGBTQ issues remains strong, especially in more conservative regions such as in 2023, where Florida and Texas have passed laws restricting transgender rights.

Team 303 Non-creative

FAIR: Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47 (2006)

In the case, Forum for Academic and Institutional Rights (FAIR), as an association representing law schools and faculties, sought a preliminary injunction against the enforcement of the Solomon Amendment, arguing that the Amendment is violating its members’ First Amendment freedoms of speech and association. The Solomon Amendment is stipulating that if the universities and other institutions deny military recruiters “from gaining access to campuses, or access to students . . . on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer”, 10 U. S. C. § 983(b) (2000 ed., Supp. IV), they will face losing certain federal funds.

Law faculties do not want to provide access to military recruiters. The reason for this refusal was the faculties’ opposition to the military’s policy on homosexuals at the time of the case. The military´s policy called “Don’t ask, don’t tell,” which means that homosexuals are not welcome in the military, and to join the army, homosexuals must remain silent about their sexual orientation.

The District Court disagreed and denied FAIR’s arguments, stating that it was unlikely to succeed upon examination of the merits of the case. The District Court determined that the Solomon Amendment regulates conduct, not speech, and therefore did not violate the First Amendment of the Constitution. Subsequently, the Court of Appeals for the Third Circuit, by majority vote, reversed the decision and remanded the case to the District Court, ordering the issuance of a preliminary injunction.

The question before the Supreme Court is whether the Solomon Amendment infringes the universities’ freedoms of speech and association. In answering that question, the Supreme Court also had to determine whether the Solomon Amendment was regulating conduct or speech of the universities. 

Justice Roberts presented the opinion of the Court. The Supreme Court unanimously held that the Solomon Amendment regulates conduct, not speech, and therefore did not violate the law faculties’ freedoms of speech and association.

The first interesting argument in the court’s reasoning was whether the Solomon Amendment’s equal access requirement is satisfied if faculties apply the same policy to military recruiters as they do to other nonmilitary recruiters. This means whether faculties comply with the Solomon Amendment’s requirements if they exclude any other nonmilitary recruiters that violate their nondiscrimination policy. In this matter, the Court determined that it is not about equal treatment of all recruiters; the Solomon Amendment specifically regulates equal access for military recruiters compared to other nonmilitary recruiters. Justice Roberts emphasized this view of the Court, declaring, ‘The statute does not call for an inquiry into why or how the “other employer” secured its access” (p. 56)

The court also took into consideration the will of the legislature by noting that the first version of the Solomon Amendment obligated universities to provide only entry to the campus without specifying any further conditions. When universities started to prevent that entry by restricting it through different methods without infringing the Solomon Amendment, the Government responded by amending the Solomon Amendment to its current version, which requires not only entry but also equal access.

After that determination, the Court concluded that the Solomon Amendment regulates conduct, not speech. In reaching that conclusion, Justice Roberts presented the opinion of the Court by arguing against the Third Circuit’s reasoning. One of the Third Circuit’s opinions is that law schools were engaging in speech by sending emails and distributing flyers when providing recruitment services to military institutions, and these were considered as speech. Justice Roberts, on the other hand, found that writing emails or distributing flyers were not compelled speech but were “plainly incidental” (p. 62) and said that the Third Circuit’s conclusion was “far cry from compelled speech.” (p. 62), because the Solomon Amendment “…does not dictate the content of speech at all, which is only ‘compelled’ if, and to the extent, the school provides such speech for other recruiters.” (P. 62)

After concluding that the Solomon Amendment regulates conduct, not speech, Justice Roberts discusses the expressive nature of conduct, taking into consideration similar precedents of the Supreme Court, such as O’Brien, Dale, Hurley, and Barnette, where different forms of expressive conduct were involved. However, Justice Roberts distinguished all those precedents, claiming that unlike the cases mentioned above, “… a law school’s decision to allow recruiters on campus is not inherently expressive” (p. 64), because “A law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter’s.” (p. 64)

In the 303 Creative case, Justice Sotomayor, in her dissenting opinion, analogizes the FAIR case by putting forward the same logic that was used in FAIR, claiming there is no compelled speech at hand because the Colorado Anti-Discrimination Act does not require Ms. Smith or 303 Creative to express the state of Colorado’s preferred messages.

Team 303 Non-creative

The Warren court, the period from 1953 to 1969 when Earl Warren served as the Chief Justice of the U.S. Supreme Court, is considered to be the most liberal Supreme Court so far. It made many important decisions during the civil rights era, such as abolishing racial segregation of schools in Brown v. Board of Education (1954). There was however a limit to the court’s liberalism, particularly in matters concerning the military.

In 1966, during the Vietnam War, David O’Brien burned his draft card in front of the South Boston courthouse in protest of the war. O’Brien was convicted because there was at the time a federal law that made it a crime to alter or destroy a draft card. He was sentenced to six years in prison. In 1968, the US Supreme Court upheld the federal law in United States v. O’Brien, a decision that established the O’Brien standard for constitutional scrutiny.

O’Brien argued in court that the federal law criminalizing the burning of draft cards was against the Constitution because his act in protest of the war was symbolic speech and protected by the First Amendment of the US Constitution which states, “Congress shall make no law [..] abridging the freedom of speech”. The opinion of the majority of the Supreme Court, written by Chief Justice Warren, plainly rejected the argument. Warren wrote that “[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea”. This is surprising, since during the 60s the Supreme Court considered many other types of protest to be symbolic speech, for example sit-in demonstration in a white-only segregated library (Brown v. Louisiana, 1966), wearing a black armband at school in protest of the Vietnam War (Tinker v. Des Moines Independent Community School Dist, 1969) and nazis marching with swastikas (National Socialist Party of America v. Village of Skokie, 1977).

After refusing to recognize O’Brien’s act as speech, Warren nevertheless went on to analyze O’Brien’s argument, noting that ‘when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.’ So, according to Warren, the important thing is whether the law regulates the speech element or the nonspeech element of the act. In this case the court held that the purpose of the federal law was to ensure that the drafting of soldiers ran smoothly and not to curb protests. This is interesting as the words criminalizing the knowing destruction or mutilation of a draft card were amended to the law in 1965 after various draft card burning protests. Even Warren’s opinion notes that the reports of the Senate and House Armed Services Committees ‘make clear a concern with the “defiant” destruction of so-called “draft cards” and with “open” encouragement to others to destroy their cards.’

This led to the establishment of what became known as the O’Brien standard. According to the standard, a government regulation is “sufficiently justified” if: 1) “it furthers an important or substantial governmental interest”, 2) “the governmental interest is unrelated to the suppression of free expression” and 3) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest”. The first criterion is simple, as Warren notes that “[t]he constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping”. The second and third criteria are more dodgy in this case, as the analysis makes it or breaks it with Warren’s insistence that the burning of a draft card is not a public protest and that the law forbidding the destruction of draft cards is all about the smooth operation of drafts and not at all about suppressing protests.

A similar question is at the heart of 303 Creative LLC v. Elenis (2023). Is making websites “pure speech”, as Gorsuch writes in the majority opinion, and is it within the web designer’s freedom of speech not to sell websites for gay marriages? Or is it commercial conduct, as Sotomayor writes in her dissent? In her view the Colorado anti-discrimination laws regulate only conduct and “any effect on the company’s speech is therefore incidental to the State’s content-neutral regulation of conduct.”

The distinction is important, because if making marriage websites is “pure speech”, any regulation on it is regulation on free speech and the standard of strict scrutiny is applied. Under strict scrutiny, the law is unconstitutional unless it is “narrowly tailored” to achieve a compelling state interest. As we have seen, for a combination of speech and conduct, the less strict O’Brien standard can be applied, if there is a governmental interest other than suppressing free speech. In this case, the conservative majority applied strict scrutiny and held that compelling web designers to create websites for gay marriages was unconstitutional.

It could have just as likely gone the other way. The court could have decided the creation of a website is a combination of speech and conduct elements and the O’Brien test is applicable. It is interesting that while the standards of scrutiny are fairly established, the court seems to be very free to decide what is speech and what is not. But clearly there is a difference between anti-discrimination and the military, where the government interest is “broad and sweeping”. As Gorsuch writes in 303 Creative, “[a] commitment to speech for only some messages and some persons is no commitment at all”.

Team 303 Non-creative

The case of Miami Herald Publishing Company v. Tornillo from year 1974 has an important role in establishing the legal precedent of ‘editorial freedom’, also referred to in the recent case of Moody v. NetChoice. So, based on this case, what does the editorial freedom mean, how was it constructed and more importantly – how does it relate to the present-day?

In the case of Tornillo Chief Justice Burger delivered the opinion of the court, stating: “The issue in this case is whether a state statute granting a political candidate a right to equal space to reply to criticism — by a newspaper violates the guarantees of a free press”, Tornillo (Burger, J.) p.241. At the time Florida Statute § 104.38 (1973) or also known as “right of reply” statute, provided that when a candidate for nomination was criticized by a newspaper, the criticized party had a right to demand that the newspaper print, free of cost, a reply written by them. Rejecting to print this reply meant committing a first-degree misdemeanor. 

So, the case to its core was about the role and rights of the press as using their freedom of speech established by the First Amendment. In the majority opinion of the court Burger describes the historical view in which the First Amendment was created, and the fact that the function of the press is to represent broadly the views of the people – the same role addressed to it already at the time of the enactment of the Amendment. So, the role of the media, on the other hand, is to act as a free marketplace of ideas, and on the other, to act as the harsher critic of the government, which is not to restrict it, the rule which is also in this case affirmed by the court.

However, at the time the court acknowledged also the fact that the media can be a double-edged sword. Media is a powerful tool if the information it spreads is false or biased. This view is especially brought up by J. White in his concurring opinion. He expresses concerns about liability issues – the media releasing false information and people not having the right to defend themselves – or as he puts it, a fair chance to vindicating oneself. 

From justice Whites opinion, it is a little unclear why he is in general so concerned with the right of reply. As he himself mentions, quoting another case: “In plain English, freedom carries with it responsibility even for the press; freedom of the press is not a freedom from responsibility for its exercise,” as stated in Pennekamp v. Florida (Frankfurter, J., concurring) p.356. So, the press has freedom, but also a certain obligation to stick to the truth, the precedent seems to imply.

But how is this linked to the more recent case of Moody? In Moody, in the opinion of the court, delivered by justice Kagan, the Tornillo case and the freedom of press it establishes, are highlighted many times. Even when in Moody the question is not about the press but rather about the social media platforms, the holding of Tornillo: exercise of editorial control and judgement, still holds value. Justice Kagan highlights the judgement of Tornillo as it supports the viewpoint she promotes: the editorial freedom of social media platforms. Tornillo, as Kagan also mentioned, promoted greater diversity of expression of speech (p. 19) in addition to ruling that the owners of an expressive platform have a right to decide what is and is not said on their platform. This way the holding of Tornillo and the exercise of editorial control and judgement declared by the court can be seen as important – also from the viewpoint of the present-day.

However, noteworthy is that not only justice Kagan, but also justice Alito mentions this case in his concurring opinion. He, on the other hand, has a totally different standpoint; he states that the differences between Tornillo and another case, Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, creates the question of how the media is managed: if it is simply meant as a platform for others speech or if it can be seen as providing also its own speech. In Alito’s view this difference between these two cases is important and, in his opinion, backs up his view. He also mentions the possibility of media platforms using AI, not human workforce as editors. His point thus seems to be that, considering the First Amendment rights, it makes a difference by who and how the editorial task is done. 

Also, the construction: “A true marketplace of ideas”, mentioned by Alito has been already brought up, but in a totally different context, in the Tornillo case. Even at the time of the Tornillo judgement, a concern about the monopolization of the media was mentioned. The court stated that “The First Amendment interest of the public in being informed” was seen to be in peril because the “marketplace of ideas” was, already, a monopoly controlled by only the owners of the market, Tornillo (J. Burger) p. 251. So, the recognition of the problem of concentrated power and restriction of free speech was already there, in the context of the press, a question very similar to the one Alito seems to be asking.

Even when justice Alito rises many interesting and noteworthy issues in relation of the context of social media platforms – as Kagan well states: “However imperfect the private marketplace of ideas, here was a worse proposal – the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others”, Moody, (Kagan, J.) p. 19. Even when times have changed, the questions about freedom of speech remain much the same.

Team Moody

In today’s world, free speech is absolutely pivotal in building a working society. In addition, it is probably the most fundamental right a person can have hence it is also the first amendment in the US constitution. The Supreme Court of The United States regularly has its hands full in trying to protect free speech while also trying to protect citizens from harmful and dangerous speech.

In the Supreme Court case PruneYard Shopping Center v. Robins the court was once again dealing with a free speech –related issue.  The case was about a group of high school students who set up a stand in the PruneYard Shopping Center. The students were collecting signatures from passers-by and also giving out literature regarding a United Nations decision against Zionism. The students were asked to leave by a security guard since they hadn’t been given permission to do so by the owners of the Shopping Center. 

The Supreme Court upheld California’s Supreme Courts decision unanimously. In the decision the Supreme Court stated that under California’s constitution, individuals could practice their right to free speech even in someone else’s private property at least when the property is regularly open to the public. It also stated that states could give citizens more rights than those that are awarded on the federal level.

What I want to focus on in this blog text is how the PruneYard case was used as an argument over 40 years later in the Moody v. NetChoice case. In the Moody case the Supreme Court was dealing with a dilemma caused by social media networks and more specifically their moderation. The case was given back to the Circuit Courts because of procedural mishaps, but the judges did still give opinions on the matter.

In this blog text I will concentrate on Justice Alito’s concurring opinion, in which he referred to the PruneYardcase. Alito states that social media platforms and shopping center’s can be compared in some regards. The main point being that both entities are open to the public and can in that aspect be forced to host or publish speech that does not concur its own viewpoint. Alito also argues that in both cases, the speech allowed in either the shopping center or on social media platforms the opinions expressed would not be mixed with the possible message of the publisher.

At least in this case, Alito represents free speech as an absolute. He states that people should be able to publish almost anything on these platforms, regardless of the content. Alito thinks of social media as more of a “free marketplace of ideas” instead of a more traditional media outlet, which naturally has to have the ability to limit speech.

What do I think of the PruneYard case being used in this case? I don’t think that social media platforms and shopping centers can be compared pound for pound. What I do in some capacity agree with is Alito’s idea of social media platforms being more open. At least I think that the platforms should be more transparent in their moderation. 

So in conclusion I would say that the judgment in the PruneYard case is good and also relevant in today’s times. But I don’t think that it is the best argument to use in a case regarding social media platforms, due to their inherent differences. But I do hope that the Moody case will return to the Supreme Court and we can get a conclusion to this case.

Thanks for reading!

Team Moody

Pacific Gas & Electric Company (PG&E) is a utility company that provides electricity and natural gas in California. As a company regulated by the Public Utilities Commission of California (PUC), PG&E published a newsletter called the « Progress » that was sent to its subscribers. The newsletter contained information about the company’s services as well as positions on various political and social issues. The PUC ordered PG&E to allow a consumer advocacy group called TURN, to include its own messages in the unused space in the newsletter. The PUC’s goal was to ensure diversity of opinion and give subscribers a platform to read opposing viewpoints. PG&E challenged this requirement, arguing that it violated its constitutional right not to be compelled to express or disseminate ideas of which it disagreed. 

In this case, Pacific Gas & Electric Co. v. Public Utilities Commission of California (1986), the United States Supreme Court considered whether a private company could be compelled by a public authority to disseminate a message that it rejected. At the heart of the dispute was a fundamental question: how far can the state go in its regulation without infringing on constitutional freedoms, in particular freedom of expression protected by the First Amendment? In other words, to what extent can a private actor be compelled by a public entity to transmit messages contrary to its own beliefs? 

The Supreme Court, in a 5 to 3 opinions led by Judge Powell Jr, ruled in favor of PG&E. The majority concluded that the PUC’s requirement violated the First Amendment because it forced PG&E to transmit messages it did not want to broadcast, and that the same Amendment protects not only the right to speak, but also the right not to speak or be associated with unwanted speech.

This decision, PG&E case highlights several key points, points that still resonate today, notably through Moody v. NetChoice (2024).

First, the prohibition on compelled speech. The Supreme Court ruled that the state cannot force a private company to express a message against its will. As Judge Powell Jr noted in the majority opinion, for corporations as for individuals, the choice to speak includes within it the choice of what not to say. This principle has been interpreted as an extension of the right to free speech, which also includes the right not to be compelled to associate oneself with speech that one disapproves of.

Next, there was the protection of intellectual autonomy. Judge Powell Jr also noted that Freedom of speech also protects the freedom not to be compelled to convey a message that is at odds with the entity’s own beliefs. This principle reinforced the notion that corporations must have the right to choose how they express themselves, an issue that has arisen in many cases regulating commercial speech.

Ultimately, it ended with a narrow reading of public interest justifications. Although the PUC invoked a public interest to justify its interference with private business speech, the Court held that that interest could not override constitutional rights, particularly freedom of speech. 

The PG&E decision thus established fundamental principles regarding the protection of freedom of expression, in particular that freedom of expression includes not only the right to speak, but also the right to not speak. In this light, Moody case is part of a continuing reflection on the limits of state intervention in private speech, albeit in a different context.

In Moody case, Florida and Texas introduced laws in 2021 that restrict the ability of large social media companies, such as Facebook, Twitter, and YouTube, to moderate content posted by their users. Both states argued that their laws were necessary to protect free speech, but they were immediately challenged by groups representing big tech companies, arguing that the laws violated the First Amendment by forcing companies to accept and distribute messages they deemed harmful or undesirable.

The heart of Moody case, then, lies in the same question as PG&E case: How far can a private company go in moderating speech that goes against its views, but is nonetheless posted on its platform?

The Supreme Court, by a unanimous decision and with a majority opinion written by Judge Kagan, emphasized the importance of protecting the free speech of private entities, particularly when they exercise some form of editorial control over the content they allow or prohibit. She argued that the Florida and Texas laws, while purporting to protect the free speech of platform users, actually imposed a constraint on the speech of the companies themselves by forcing them to broadcast content they did not approve of.

A key argument made by Justice Kagan was that the First Amendment protects not only the right to speak, but also the right to « not speak ». She reaffirmed the idea that private entities, including social media companies, should have the right to decide what content they agree to broadcast. Moody v. NetChoice (Kagan J.) p. 4. recalled the principle established in the PG&E case, where the Court held that the government cannot force a company to transmit a message it does not approve of. This principle was crucial to Moody’s analysis, because it allowed Justice Kagan to argue that the Florida and Texas laws, by forcing platforms to accept certain types of content, violated the free speech of the companies in question. Judge Barrett concurring (p. 41) « a speaker’s right to decide what not to say ». 

In her analysis, Kagan also addressed the public interest justifications put forward by states, namely combating misinformation and protecting users’ freedom of expression. She reasoned that, while these concerns are legitimate, they do not justify such intrusive intervention in the management of private companies’ content. 

Thus, to conclude, in 2024, as social media platforms play a central role in public discourse, the question of how far the state can intervene in the management of that speech becomes increasingly complex. The First Amendment is no longer just a shield against government censorship, but a principle of protection against any form of coercion on the editorial freedom of private companies. Thus, the Moody case is part of a legal dynamic where the balance between the regulation of digital content, public interest concerns and the preservation of fundamental freedoms, including freedom of expression, remains a major challenge. Accordingly, Moody case highlights an aspect of the First Amendment, namely that freedom of expression goes beyond the right to express oneself; it also includes the right not to be compelled to disseminate a message, a principle brought out by PG&E, also showing how this precedent is still used today.

Team Moody

As social media platforms continue to shape communication and public debate, legal questions about their regulation and First Amendment protections have become increasingly important. 

In 2021, Florida and Texas enacted statutes regulating large social-media companies and other internet platforms, both curtailing the platforms’ capacity to engage in content moderation and requiring the platforms to give an individualized explanation to a user if they remove or alter the user’s posts. In the case Moody v. NetChoice (hereinafter: Moody), the Supreme Court evaluated whether Florida and Texas could restrict social media platforms’ ability to moderate content. The Court’s reasoning included references to a case from 1994 called Turner Broadcasting v. FCC (hereinafter: Turner I), which examined government-imposed obligations on cable operators.

The purpose of this blog text is to first shortly examine Turner I, discussing what it was about and analyzing the legal reasoning behind it, followed by an analysis on how Turner I was referenced in Justice Kagan’s opinion in Moody.

In Turner I, cable operators challenged the must-carry provisions of the Cable Television Consumer Protection and Competition Act of 1992, arguing that forcing them to carry local broadcast stations violated their First Amendment rights. The Supreme Court ruled that the must-carry provisions were content-neutral and therefore subject to intermediate scrutiny rather than strict scrutiny. The Court reasoned that the must-carry rules did not target specific viewpoints but instead served three interrelated interests: (1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming. 

Justice Kagan used Turner I in Moody to support her argumentation on whether Florida and Texas could restrict social media platforms’ ability to moderate content. Kagan cited Turner I to reinforce the principle that social media platforms engage in editorial discretion, much like cable operators when selecting which stations to carry. Kagan argued that just as the must-carry rules in Turner I interfered with cable operators’ editorial discretion by forcing them to carry channels they would not have chosen, the Florida and Texas laws similarly interfered with platforms’ ability to decide what speech to host.

Kagan rejected Texas’ argument that Turner I supported its content-moderation laws, explaining that Turner I upheld the must-carry rules not to balance expressive content but rather to save the local-broadcast industry, so that it could continue to serve households without cable. The government’s interest in Turner I was based on competition policy, aimed at limiting the monopolistic gatekeeping power of cable operators to ensure the survival of broadcasters, rather than an attempt to alter speech. In contrast, the laws in Moody were direct regulations on content-moderation policies, making them fundamentally different from the must-carry rules upheld in Turner I.

While the must-carry rules in Turner I aimed to protect market competition, the Florida and Texas laws in Moodyimproperly restricted platforms’ editorial discretion. However, Justice Kagan’s use of Turner I in Moody shows that competition concerns could justify must-carry regulation on tech platforms.

Team Moody

Freedom of speech and expression is considered to be as one of the most important rights in the western world.  This is especially true in the United States. Freedom of speech is guaranteed in the First Amendment of the U.S. constitution. It is not very surprising that the Supreme Court has also given several landmark judgements in this matter. Here, I am discussing two of them. The subject in both is the concept of compelled speech. It means that the government can not force an individual or a group to support certain expression or opinion. First one of the cases I am discussing is Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, Inc. This was a very interesting case of Freedom of speech in relation to presentation in a Saint Patrick’s Day parade. Second case is Moody v. NetChoice LLC. The issue in this case was the content moderation that many online service providers use and whether this was a violation under First Amendment. My purpose is to illustrate how the Supreme Court uses the arguments in the first one to support the ruling in the second one.

In Hurley, the question of free speech came in relation presentation in a Saint Patrick’s Day parade. This parade consisted of a various veteran groups authorized by the city of Boston. The application to the Supreme Court was sparked by the refusal of accepting GLIB (Irish American Gay, Lesbian and Bisexual Group of Boston) as a part of the parade. GLIB wished to participate in order to express its members’ pride in their heritage as openly gay, lesbian and bisexual individuals. The legal question was whether this parade was a protected form of expression that would be protected under the First Amendment of the constitution.

GLIB argued that the city council’s decision to deny their participation was a form of discrimination prohibited by the First Amendment. The Massachusetts court argued that the council did not have any procedures for admission, there was no other reason to exclude GLIB than discrimination. Court also stated that since there was a lack of genuine selectivity in choosing participants and sponsors, it demonstrated that the parade was in fact a public event. Council appealed the decision, and the case entered into the Supreme Court.

Supreme Court did not agree with the Massachusetts’s court decision. The Supreme Court saw that the parades are inherently expressive and because of these organizers can select participants. In its ruling, Massachusetts court violated the first amendment by requiring private parades to include messages or people the organizers did not agree with.

Supreme Court’s definition of the First Amendment is that it offers protection when there is an entity engaging in expressive activity (that includes compiling and curating others’ speech) and it is directed to accommodate messages they would prefer to exclude. When there is editorial selection and presentation of the content, it is considered as a speech activity. It does not matter whether it comes from a third party or not. Decision to include or exclude a third-party speech is expressive activity of its own and it results in a distinctive expressive product. When government interferes with editorial choices it alters content of the compilation thus overriding expressive choices of the private party. This is enough to violate the First Amendment.  

Constitutional protection also covers situations where the excluded messages are few or even only one. The parade did not have to express a particularized message in order not to reject few messages they found harmful or offensive. In the judgement court takes a firm stand against compelled speech. The government has no right to decide when the speech is against its own vision of ideological balance or to alter the speaker’s own expression.

Alito gave a concurring opinion. His view on Hurley differs greatly from the opinion of the majority.  In his view legal precedents of this matter are incomplete. It is inconclusive how social media platforms” moderate” user content and whether it is inherently expressive in a way that it is protected under the first Amendment. Alito is way more critical of the judgement given in Hurley. He notes that usually freedom of speech is interpreted in a way that forbids government in denying, restricting, or compelling peoples own oral or written expression. Hurley case, however, freedom of speech was expanded. It now included the right to:” present an edited compilation of speech generated by other persons” for expressing a particular message. Compilation here means organized package of expressions of others intended to be presented. 

Since the First Amendment protects compilations that are” inherently expressive”, the parade did not convey any particular meaningful expression. Accommodation therefore does not amount to compelled speech. Alito states that a parade organizer who wants to exclude certain groups of people on the the basis of First Amendment must show at least some sort of collective point or theme. If the parade comprises just unrelated segments, it does not express anything at all. Finally, Alito underlines that the compliers own message is to be affected in order to receive protection under the First Amendment.

In my opinion Hurley is quite weak precedent to use in Moody since this case dealt with moderating already existing messages a.k.a censorship and not the prohibition to express one’s own opinion beforehand. Actually, Hurley is weak case in general. The Supreme Court really had to elongate the concept of parade in order make it fit to the narrative of compelled speech. It really almost feels forced. In my view, the parade organizers did not want to include GLIB for discriminatory reasons, perhaps they were afraid that it would somehow tarnish the parade in question.