The Supreme Court's big free speech decision raises as many questions as it answers

“The 360” shows you diverse perspectives on the day’s top stories and debates.

Photo illustration: Yahoo News Visuals; photos: Peter Dazeley, mikroman6, Bildagentur-online via Getty Images
Photo illustration: Yahoo News Visuals; photos: Peter Dazeley, mikroman6, Bildagentur-online via Getty Images

What’s happening

The Supreme Court last week ruled in favor of a Christian web designer who argued that having to make wedding websites for same-sex couples would violate her First Amendment rights. The decision was viewed as a major landmark in the balance between antidiscrimination protections and free speech.

The case, 303 Creative LLC v. Elenis, centered around Colorado-based designer Lorie Smith, who argued that building wedding announcement websites for gay couples would violate her faith. Colorado is one of about 20 states with a law that specifically prohibits businesses from discriminating against people based on their sexual orientation or gender identity.

Smith never made a wedding page for any clients, and recent news reports show that a request she claimed she received asking her to do so for a gay couple may not exist. Still, the court’s six conservative justices found that the custom designs Smith creates for clients constitute a form of speech and being forced into “celebrating marriages she does not endorse” would infringe on her First Amendment rights.

Why there’s debate

The ruling is a clear victory for Smith, but there’s a lot of debate over how broadly the decision will apply outside of this specific set of circumstances, due to the lack of clear guidelines about what types of businesses can count their work as “expressive” speech. Many liberals fear that the court has created a loophole in antidiscrimination laws that could allow everyone from photographers to chefs to refuse to provide services to people they dislike — whether it’s LGBTQ people, interracial couples or people of color — on First Amendment grounds.

Most conservatives say these concerns are overblown. They argue that the new standard set by the court applies only to a small subset of businesses that do purely creative work. Many also say the ruling is a major win for free speech that benefits underrepresented groups most of all, since they are the most vulnerable to having their free speech violated by the majority.

What’s next

Most legal experts expect the 303 Creative decision to spark a series of new cases that will test how far the new free speech protections created by the court can go. It’s unclear how long it may take any of those follow-up cases to make their way to the Supreme Court.


A wide range of businesses now have space to refuse service to groups they don’t like

“The opinion is not limited to the facts of this specific case. Under its reasoning, businesses that offer customized or ‘expressive’ goods can discriminate. And while Smith asserted religion as her motivation, this is a speech case, so it won’t matter whether business owners are motivated to discriminate by sincere religious values, secular bigotry or no reason at all. Antidiscrimination law equally will be seen as targeting their speech.” — Elizabeth Sepper, Los Angeles Times

The case applies only in very specific circumstances

“The Court isn’t offering a license to discriminate. … Colorado concedes that Ms. Smith is willing to serve customers regardless of sexual identity. She says she’ll happily design a website for a gay customer who wants to promote, say, an animal rescue. What she won’t do is promote causes that violate her conscience.” — Editorial, Wall Street Journal

The harms won’t be limited to just LGBTQ people

“From a legal perspective, there is exactly zero difference between civil rights laws protecting gay people and laws protecting Black people. Under [last week’s] decision, the web designer could have refused to make a website for an interracial or interfaith wedding.” — Noah Feldman, Bloomberg

No one, of any faith, should be forced to espouse beliefs they disagree with

“A failure to protect Smith’s rights would also leave the state free, if it so chose, to compel Muslims to produce Zionist messages or atheists to paint evangelical murals. The same leftists who support Colorado in this case surely would scream loudly if the shoes were on those other feet.” — Editorial, Washington Examiner

The court is using the First Amendment to harm the very people it was created to protect

“The First Amendment was once an indispensable tool for protecting the rights of the marginalized. … [The court], however, has turned that shield into a wrecking ball, using the First Amendment to take aim at the very laws that were enacted to protect the vulnerable.” — Joseph Pace, Slate

Everyone benefits when free speech is defended

“This is a free speech decision that protects everyone, gay and straight, and stands for the proposition that the state cannot compel Americans engaged in expressive speech — even those operating small businesses — to say things they do not believe.” — Brett G. Scharffs, Deseret News

The court has given Christians a right to discriminate that no other group will have

“So now, bigoted business owners need only say that their business is ‘creative’ and their bigotry is motivated by religion, and the Supreme Court will entertain their case. (Well, the bigotry better be motivated by a ‘Christian’ religion, to prevail in front of this court. I highly doubt that the justices will countenance bigotry allegedly motivated by the tenets of a non-Christian religion.)” — Elie Mystal, the Nation

The scope of the decision won’t be clear until more boundaries are set in future cases

“The high court also didn’t establish a right for any and every business owner to decline to provide services for same-sex weddings — only those whose services involve expressive activity. Whether a particular service (say, cake baking) is expressive will have to be litigated case by case.” — Stephanie Slade, Reason

The ambiguity of the ruling creates opportunity to fight back

“Let’s not allow those who want to take away our rights to define this as a big victory for family values. Let’s frame it exactly as the Supreme Court has: as about free speech and nothing more. Let’s not give our enemies more of our freedom than they’ve actually taken away.” — Jay Michaelson, Daily Beast

Photo illustration: Yahoo News Visuals; photos: Peter Dazeley, mikroman6, Bildagentur-online via Getty Images