Creative Discrimination: A good look at the First Amendment and anti-bias laws related to business

The Supreme Court is set to hear the case of 303 Creative v. Elenis, which touches on the issue of what the government can and cannot compel businesses to do in relation to discriminatory actions against specific groups in society. The suit will assess whether the Colorado Anti-Discrimination Act violates the First Amendment rights of website creator Lorie Smith , who wants to expand her business to include wedding websites, but said she will not design them for LGBTQ couples.

In this case, the argument attempts to rely on the speech aspects of the amendment, arguing that the work Smith would do could be considered “artistic expression.” Therefore, according to Smith, any law that forces someone to do nor not do something with “artistic expression” in it would violate the First Amendment.

As is usually the situation, this case isn’t about one website or one wedding cake, but rather the degree to which discrimination can be cloaked in the cover of an individual’s right to free expression. Although the courts have allowed the “expression” protected under the First Amendment to go far beyond speaking and printing newspapers, they have also put limits on what could be protected here. Child porn, true threats and other forms of “expression” have been deemed to have no value, and thus receive no protection.

Courts have also ruled that time, place and manner restrictions do not violate the First Amendment, as long as they don’t disadvantage a particular point of view. My favorite case involved a Wisconsin worker who would drive past the governor’s house every morning, flip the bird at the house, yell “RECALL WALKER!” and honk his horn. The courts split the baby on this one, allowing him to yell and gesture, but the horn was considered a bridge too far.

Trying to sort out what does and doesn’t get covered, or how courts tend to view these things can get really complicated. David Cole, the national legal director of the ACLU, has an opinion piece in the New York Times which picks through the issues of expression and discrimination and how cracking down on the latter, doesn’t mean we violate people’s rights to the former. To whatever degree you side with either group, Cole’s piece is worth a read, as it is both straightforward and clear in its explanation of how and why these two concepts can coexist.

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