The Supreme Court case 303 creative LLC v. Elenis 600 U.S. ___ (2023) (Slip opinion) about compelled speech uses a lot of references to the Supreme Court case Rumsfeld v. Forum for Academic & Institutional Rights Inc., 547 U.S. 47, 61 (2006) (FAIR) in its documents from the Briefs to the Court’s opinion and the dissenting opinion. To understand the use of this particular case on both sides, we must first briefly go through the FAIR case.
The FAIR case focused on the First Amendment’s freedom of speech, more specifically on compelled speech. Schools were compelled to give equal access to military recruiters on campus even though their policies on homosexuals did not align with the school’s students or faculties values. Because of the Solomon Amendment, schools would lose some of their federal funds if they did not accommodate the military. FAIR (Forum for Academic & Institutional Rights Inc.) argued that the Solomon Act violates the First Amendment because the forced inclusion of military on campus can be seen as compelled speech, and they did not want to be associated with the military’s policies as they did not agree with them. The Supreme Court ruled that the Solomon Act does not violate the First Amendment. They argued that just the presence of the military recruiters does not violate the school’s right to association and the school’s faculty and students are still free to disagree with these military policies and are able to express that. Giving equal access to campus was not viewed as an issue about speech at all.
The FAIR case is first brought up in the 303 creative case in the Brief of Petitioners. It’s mentioned that the Court has repeatedly held that the government cannot regulate what people should say and that the question is about the line between speech and conduct. They also question whether forced accommodation involves a form of expression in their case or not. The petitioners argue that their message is affected by the speech they are forced to accommodate and therefore this case is about compelled speech. It is brought up that in FAIR there was no violation of the First Amendment because the accommodation of the military did not sufficiently interfere with the school’s message. They were only compelled to give equal access to the campus. The outcome would’ve been different if the school’s were compelled to add the military’s policies on their courses of curriculums. The petitioners think that the FAIR case does not apply to this one and should be distinguished.
The Supreme Court ruled in favor of the petitioners. The majority of the court also wanted to distinguish the 303 case from the FAIR case. They agree that in FAIR the compelling happening was in fact incidental and not about the freedom of speech. The 303 is different because Colorado did not seek to impose incidental burden on speech but rather force an individual to say a message that does not align with their beliefs and that holds political and religious significance. Therefore, the FAIR case should not be affirmed in this case, and if it was the First Amendment would not tolerate it. They added that even if FAIR is recognized, the government cannot affect a speaker’s message.
The respondents however wanted to use the FAIR case as a base for the 303 case. In the Brief of respondents it was brought up that antidiscrimination laws were upheld in the FAIR case and that the case was about regulating conduct and not speech. The petitioners had brought up an argument about how they are communicating that they support a message they do not agree with based on providing service but this type of argument has been rejected in the FAIR case, so the respondents want to reject this one as well. The Brief states that selling a service for a website is not seen as expressive and that a difference can be seen between providing service and the petitioner’s opinions. They are also able to speak their own message if they want to, therefore the message is not affected by Colorado’s nondiscrimination regulation. The respondents feel that 303 creative’s proposal conflicts with the FAIR case and should be rejected on that basis.
The dissenting opinion of the Supreme Court minority agrees that the FAIR case should be reaffirmed. They argue that the law in question regulates conduct rather than speech and that the regulation’s effects on the speech included in Smith’s services are incidental. Smith can choose their clients based on the message they want to spread but not based on the clients’ sexuality or other traits. So for example Smith can say that they will only publish texts aligning with the Bible, but they cannot put up a sign on their website that says they do not provide services to sexual minorities. Therefore the state of Colorado is not requiring Smith to speak the state’s preferred message nor does it prohibit Smith from speaking their preferred message. The Supreme Court’s minority sees that this case is in fact about public accommodation. They also bring up that while the majority of the Court argues that the speech in FAIR was logistical and therefore not included in the First Amendment, Smith is refusing to publish even logistical speech such as the date of the wedding. This makes the majority’s argument invalid. Based on the standards mentioned in FAIR a regulation is acceptable if it’s unrelated to the suppression of expression and promotes substantial government interests that would be achieved less effectively absent the regulation. The Supreme Court’s minority sees that this standard is achieved and the regulation is allowed.
The FAIR case has been a major source of arguments for both parties of the case as well as the Supreme Court Justices. The dissenting opinion of the Court and the respondents want to reaffirm FAIR in the 303 creative case, while the majority of the Court and the petitioners want to distinguish FAIR from this case. It is interesting to see how both parties managed to interpret the same case in a different light that would benefit their own arguments and beliefs. However, when you have read all the documents in this case, the dissenting opinion and the respondents have more logical arguments that are based on previous cases as well as law. This raises a question about how the Supreme Court is able to make decisions with arguments that are not necessarily based on law or how the previous cases are meant to be interpreted, and this should definitely be looked in to more.
Team 303 Creative, Case Argumentation Analysis