Film director Martin Scorsese and Spiderman actor Tom Holland disagree about whether superhero movies are "real cinema," "real art." Scorsese says they aren't. Holland says they are.
No matter who's right, the First Amendment ensures Scorsese and Holland can follow their own lead. Scorsese can direct The Irishman over Spiderman. Holland can play Peter Parker over Henry Hill.
In fact, the First Amendment protects the artistic choices of all Americans, and the U.S. Supreme Court now has a chance to affirm that bedrock principle in a case it just agreed to hear: 303 Creative v. Elenis.
Lorie Smith is an artist who runs 303 Creative, a Denver-based website design business that creates custom online content consistent with Smith's faith.
But she faces a problem. A Colorado law requires her to design and publish websites celebrating same-sex weddings because she also wants to create websites celebrating the marriage of a man and a woman. The law imposes this requirement even though creating websites promoting same-sex weddings would violate Lorie's sincere religious belief that marriage is the union of one man and one woman. The law also silences Lorie—forbidding her from explaining the religious views that inform her creations on her studio's website.
Standing in the law's crosshairs, Lorie confronted an impossible choice: violate her faith or face punishment. This threat is certain. Lorie has already received a request to design a website celebrating a same-sex wedding. And she's watched Colorado prosecute another local artist, baker Jack Phillips, up to the United States Supreme Court.
The Court blasted Colorado for treating Phillips' faith with "hostility." Undeterred, a state official said she was "proud" of comments her colleague made disparaging the baker's beliefs. So Colorado prosecuted him again. Now an activist attorney is suing Phillips for declining to create another custom cake that conflicts with his beliefs. To avoid Colorado's wrath, Lorie challenged the law in court.
Some observers misunderstood Lorie's case from the get-go. They assumed Lorie objects to working with LGBT customers. But Lorie works with everyone—including LGBT clients—as even Colorado conceded. Like most artists, Lorie chooses the messages she promotes, not the people she serves. There are some messages she can't promote through her websites for anyone—like any that demean others or glorify violence.
The real issue is that Colorado's law targets Lorie's artistic freedom.
The U.S. Court of Appeals for the 10th Circuit agreed. It acknowledged that Lorie serves everyone, that the First Amendment protects her website designs and that Colorado's law forces Lorie to promote messages she disagrees with. It even noted the law's scandalous purpose: to "eliminate" ideas like Lorie's from the marketplace. But the court ruled against Lorie anyway.
Why? The court reasoned that Colorado could force Lorie to promote messages that violated her conscience because her designs are "custom and unique." Translation: Colorado could compel Lorie's speech because her speech is original. A dissenting judge rightly criticized this logic as "Orwellian" and "unprecedented." So Lorie appealed the decision to the Supreme Court.
Fortunately, the High Court agreed to hear Lorie's case and can now resolve a lingering question: can people be forced to forsake and speak against their faith when they try to earn a living?
The Supreme Court has already said that publishers and parade organizers cannot be forced to speak messages against their will. And several lower courts have applied that logic to protect artists like Lorie.
But this case concerns more than Lorie's speech. If Colorado can force Lorie to speak on one topic just because she also speaks on another, then governments can do the same to anyone. Return to the film example—an atheist could be forced to direct a documentary on creationism if he produced one about evolution. That makes little sense.
The better way is to protect the freedom of all speakers to make their own choices about what to say. That approach protects the conscience of Lorie and others who share her beliefs. It also protects those who disagree with Lorie—for example, an LGBT website designer who declines to create a webpage that violates her beliefs.
The Supreme Court cannot settle the cinematic debate between Scorsese and Holland. But it can settle a more fundamental one: does the First Amendment protect all Americans' freedom? Much depends on the answer. The Court should reaffirm that the First Amendment is for everyone.
Bryan Neihart, legal counsel for the Center for Conscience Initiatives at Alliance Defending Freedom (@ADFLegal), represents Lorie Smith and her web-design business, 303 Creative.
The views expressed in this article are the writer's own.
