The Daily Heller: The Price of Freedom of Speech and Design (Redux)

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I have been invited to be an “expert” witness in several lawsuits addressing design and illustration appropriation and plagiarism. I routinely declined (except once where the evidence was unambiguously egregious). Recently, I received an email requesting that I include my name on a friend-of-the-court brief (amicus curiae) in a freedom of speech case involving website and graphic design. I support freedom of speech and design.

The intent of this amicus is to clarify for the Court the status of website designers as uniquely creative artists who are protected by the First Amendment. The ruling could have long-term impact for other designers, I was told. I subscribe to the First Amendment and protections that are hardwired into contemporary American life. I was informed that the amicus brief will not take one side or the other rather it will underscore facts. However, before I committed to giving my name, I did due diligence by asking two legal experts to weigh in on the request. Both guided me to read the brief itself.

A disclaimer at the end of the email prevents me from directly quoting from it. So I have not. But the case is detailed on a number of websites and wikis, including National Association of Attorneys GeneralWikipedia, and Oyez (the last calls itself “a multimedia archive devoted to making the Supreme Court of the United States accessible to everyone”). Based on what I read about the case, I was torn between idealism and reality: I decided to withhold my support because I felt that the complainant’s intent was ultimately justification for discriminatory practice.

The case centered on a statement on the website of a Colorado-based graphic designer’s business that includes creating customized marriage websites (which has become a common trend). The principal owner and sole designer is tacitly denying services to same-sex marriage / LBGTQ customers, a policy justified by the designer’s religious/faith-based belief that nonetheless ignores the fact that same-sex marriage was legally upheld by the U.S. Supreme Court in June 2015. This case is reminiscent of the 2018 Supreme Court narrow ruling in favor of the Colorado-based Masterpiece Cakeshop bakery which refused to make a wedding cake for a same-sex couple, also citing the shop owner, Jack Phillips’s, strict religious convictions. The Court’s decision opened a trap door in the law that allowed for what I consider fundamental civil rights versus religious doctrine. The case I was asked to support has similar ramifications. The following language from the Oyez site summarizes the case:

Lorie Smith is the owner and founder of a graphic design firm, 303 Creative LLC. She wants to expand her business to include wedding websites. However, she opposes same-sex marriage on religious grounds so does not want to design websites for same-sex weddings. She wants to post a message on her own website explaining her religious objections to same-sex weddings.

The Colorado AntiDiscrimination Act (“CADA”) prohibits businesses that are open to the public from discriminating on the basis of numerous characteristics, including sexual orientation. The law defines discrimination not only as refusing to provide goods or services, but also publishing any communication that says or implies that an individual’s patronage is unwelcome because of a protected characteristic.

Even before the state sought to enforce CADA against her, Smith and her company challenged the law in federal court, alleging numerous constitutional violations. The district court granted summary judgment for the state, and the U.S. Court of Appeals for the Tenth Circuit affirmed.

The next step was to petition the Supreme Court.

On 303 Creative’s website, one can still find a meticulously worded personal statement that reads as follows:

“As a Christian who believes that God gave me the creative gifts that are expressed through this business, I have always strived to honor Him in how I operate it. My primary objective is to design and create expressive content— script, graphics, websites, and other creative content— to convey the most compelling and effective message I can to promote my client’s purposes, goals, services, products, events, causes, or values.  Because of my faith, however, I am selective about the messages that I create or promote— while I will serve anyone I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs.”

Question: “Does application of the Colorado AntiDiscrimination Act to compel an artist to speak or stay silent violate the Free Speech Clause of the First Amendment?”

The case currently awaits its SCOTUS hearing. The latest update from SCOTUSBLOG.com reads: “Motion of the parties to extend the time to file the briefs on the merits granted in part. The time to file the joint appendix and petitioners’ brief on the merits is extended to and including May 26, 2022. The time to file respondents’ brief on the merits is extended to and including August 12, 2022.”

The question that weighs on me is: Where do constitutional protections of free speech and religious belief conflict with and abridge the rights of others who are also entitled to First Amendment rights? Religious freedom has long held sway over this secular nation. Yet civil laws exist ideally to mete out justice for the greater good, but not at the expense of the individual’s basic rights. However, there are always workarounds.

The underpinning of this case, if I’ve read it correctly, is the concept that “artistic expression” is a type of speech protected under the First Amendment. Generally, federal, state, and local governments cannot restrict artistic expression based on its message, ideas, subject matter or content. Nonetheless, federal, state, and local governments do often impose limitations on artistic expression.

Hence, another dog in the fight includes questions like: What is artistic expression? Is there a distinction between art and graphic, web design, editorial, or advertising illustration (AKA commercial art)? Are designers considered artists driven by a muse, or service providers hired by clients? Is a designer legally obliged to accept all customers? Or at least offer their services to everyone, based on the acceptance of reasonable, contractual best business practices, such as agreement to set fees and adhere to deadlines?

Colorado’s public accommodation clause requires that a “public facing” business provide services to anyone who requests them (note that “accommodation” means any entity that is open to the public for business). The legal language reads as follows:

“(2) (a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny 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 or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”

On 303’s “public facing” website, the designer implies unwillingness to provide services for same-sex marriages. Although it violates Colorado’s public accommodation clause, the designer argues her product is artistic expression, and is therefore viable, protected free speech. But does the application of a public-accommodation law to compel an artist to speak or stay silent violate the Free Speech Clause of the First Amendment?

Art is subjective, and anyone can call themselves an artist. I can’t definitively say what is and isn’t art, but I do have a gut response to this case: Not all speech is equal. Hate speech, for example, is discriminatory speech that causes harm, fear and humiliation. Furthermore, discrimination is unlawful. That said, no designer is compelled to take on work they do not want to do and there are many legitimate reasons (and also consequences) for not accepting a client’s commission. This case may ultimately hinge on a legal technicality, but keep this in mind: Whatever the legal outcome of this case, the inalienable right to free speech must not protect beliefs, behavior, or doctrines (religious or otherwise) that hurt, harm, or humiliate others. That includes LGBTQ partners who are exercising their freedoms of life, liberty, and the pursuit of happiness through marriage rituals that are within the law.