In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court ruled that New York’s permit system violated the Second Amendment. Bruen’s journey though is more interesting than its destination. Bruen rejected the tiers-of-scrutiny approach used in some constitutional analysis and opted for a test based on text and history. But does this analysis apply elsewhere? We might soon find out when the Court decides the free-speech issue in 303 Creative v. Elenis.
Under the tiers-of-scrutiny approach, courts first ask whether a right is burdened by a government action and then whether the government was justified in burdening it. In that second step, courts use a scale from hard to easy—strict scrutiny, intermediate scrutiny, rational basis—depending on what right is burdened and how. The approach uses a means-end analysis: did the government provide a good enough reason for acting, and did it act in a reasonable enough way? Throughout, there are a lot of categories, complications, exceptions, judgment calls, balancing, and fuzziness.
The argument against this approach jumps off the page. The Constitution doesn’t mention anything about tiers or balancing. It is atextual, ahistorical, and very discretionary. Justices and scholars alike have criticized it, including Justices Thomas, Kennedy, and Kavanaugh, and Professors Eugene Volokh and Joel Alicea. But Bruen is the first majority opinion to do so. And its language is broad.
Of course, it’s one thing for the Supreme Court to reject the tiers for Second Amendment purposes. Few cases have interpreted that provision. Many more First Amendment cases have applied the tiers.
Welcome 303 Creative v. Elenis. This case asks whether Colorado’s public-accommodation law violates the Free Speech Clause when it compels website designer Lorie Smith to design and publish same-sex wedding websites against her religious beliefs.
In many ways, 303 Creative is the poster child for rejecting the tiers. Using this approach, the Tenth Circuit recognized that Smith wants to publish websites protected by the First Amendment, that she does not discriminate against LGBT persons, that she chooses which websites to create based on their content, that Colorado’s law compels her to speak views against her religious beliefs in a viewpoint- and content-based way, and that many other website designers will provide the websites Smith won’t. So the court applied strict scrutiny.
But it then upheld applying Colorado’s law to Smith on the theory that she created a monopoly: because Smith creates websites different from others, the state had no alternative to achieve its compelling interest in ensuring access to those particular websites. The more custom the speech, the greater the state’s basis for compelling it.
This logic, however, would justify forcing any paid speaker to speak any customized expression. Smith’s opening brief and supporting amici argue that it violates decades of First Amendment and antitrust precedents. Both logically and doctrinally, speakers deserve more protection, not less, when they speak differently than others.
And there’s the rub. 303 Creative seems like an easy case under strict scrutiny. Not even Colorado has defended the 10th Circuit’s approach. But if judges can’t get this easy case right under strict scrutiny, what does that say about the tiers in general? And if anything deserves condemnation under the First Amendment’s original understanding—the relevant consideration under the text-and-history approach—forcing someone to publicly profess views against their religious convictions seems like a good candidate. Religious objections to compelled speech about political matters were “well known to the framers of the Bill of Rights.”
Put it together and the stage may be set for a substantial clarification of free-speech jurisprudence—one more grounded in the text and history of the First Amendment.
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