“It is difficult To Imagine A Ruling More Hostile To Free Speech”

In a stunning ruling yesterday in 303 Creative LLC v. Elenis, a divided panel of the Tenth Circuit held that Colorado’s Anti-Discrimination Act “permissibly compels” a graphic and website design company to offer wedding websites that “celebrate same-sex marriages” if it is going to offer wedding websites that celebrate opposite-sex marriages. Judge Mary Beck Briscoe wrote the majority opinion, which Judge Michael Murphy joined.

…More broadly, it is difficult to imagine a ruling more hostile to free speech. Briscoe understands the Colorado law to operate as a “content-based restriction” that “compels” the owner of a small website design company to engage in “pure speech” that expresses “approval and celebration” of something that she opposes. But the very fact that the owner would be customizing her speech for websites celebrating opposite-sex marriages somehow means that services comparable to hers can’t be obtained from other providers.

Briscoe’s ruling would have sweeping consequences. Tymkovich in dissent observes that Briscoe’s ruling, “[t]aken to its logical end, [would mean that] the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace.’” Read more»

Ed Whelan | Bonkers Tenth Circuit Ruling Against Free Speech | National Review | July 27, 2021

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