Free Speech, Publishing, and the Supreme Court. Part II: Urgent Action Invited From ECPA Members
By Flagler Law Group
Last fall, an ECPA Legal Update about a pending free speech case before the Supreme Court asked: does the law allow publishers to choose what to publish? We know now that the Supreme Court will provide an answer during its next term. A case establishing boundaries between protected and unprotected speech will trigger lasting effects that reverberate for decades. ECPA publishers now have the opportunity to participate in persuading the Court of the impact of its decision by joining other members in an amicus—or “friend of the Court”—brief.
What Is the Case About?
Ultimately the case is about only one question: whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech clause of the First Amendment. This is the only issue the Court agreed to hear after declining to decide Free Exercise and other religious-related questions. The speech issue centers on a Colorado website designer who creates and publishes custom websites. A Colorado state law requires her to create and publish websites for marriage ceremonies that she believes to be contrary to her religious principles. She makes no objection to serving same-sex customers generally, she only wishes not to publish text and other media for wedding ceremonies to which she objects.
In the decision appealed to the Supreme Court, a federal appellate court ruled that Colorado could compel the website designer to publish speech she objects to because the designer controls a “monopoly” of her unique expressive services. The judges reached this decision despite acknowledging that: (1) the designer’s website content constitutes speech protected by the First Amendment; (2) the state law’s “very purpose” is to “[excise] certain ideas or viewpoints from the public dialogue;” (3) the law compels the designer to create and publish speech she disagrees with.
The court cleverly argues that the state law must apply to the designer because the designer’s “unique services are, by definition, unavailable elsewhere.” In other words, despite there being many other website designers willing to offer their services, the designer controls a monopoly over her services and therefore no one else can provide the exact type of website that the designer would. She must provide “equal access” to her services. Of course, this means that Colorado may regulate the designer’s speech regardless of quality or category. It is a free speech Catch-22: if her services are rote and mechanical, they would lack originality entitled to free speech protection, but if her services are unique and warrant First Amendment protection, their uniqueness means no other designer’s services serve as a substitute. Either way, her speech rights lose.
How Does the Case Affect ECPA Members?
The First Amendment right of speech includes the right to choose what to say as well as what not to say. If the law deems that each publisher (or even each individual editor) controls a monopoly on its services justifying a burden on its free speech, states may dictate whether and how publishers exercise their editorial discretion. Would a publisher violate a similar state law if it declines to offer “equal access” to an author espousing a viewpoint the publisher disagrees with? After all, no other publisher (or editor employed by a publisher) could publish the manuscript in the same manner as the relevant publisher. Would a publisher risk a lawsuit whenever it rejects a manuscript on topics like religious plurality, sexuality, or gender?
It is difficult to imagine an author or state agency bringing a lawsuit or regulatory action based on this hypothetical scenario. Publishing is near the core of pure speech at the heart of First Amendment protection. But the Supreme Court usually only addresses an issue like the intersection of speech and editorial freedom once every 25 years or so. Few would have imagined the current website designer case 20 years ago and it is difficult to predict where this line of cases may go in the future. And for those publishers located within the court system’s Tenth Circuit, which includes Colorado, this case will be law unless overturned by the Supreme Court.
What Can ECPA Publishers Do?
For ECPA publishers concerned about this potential precedent, there is an option to influence the course of the case. The website designer and State of Colorado will argue their respective positions to the Supreme Court but non-parties may contribute to the Court’s deliberations by submitting an amicus brief on the merits of the case.
Arguing A Case “On the Merits”
In the fall, several ECPA members signed onto an amici curiae brief arguing that the Supreme Court should agree to hear the case because of the importance of the speech rights at stake. Of more than 7,000 appeals each year, the Court agrees to hear only 100-150. Now that the Court has accepted the case, the parties will argue the merits of the case in the fall of 2022, and amici parties like ECPA publishers will have the opportunity to weigh in on the issues at stake.
At the prior stage, non-parties to the litigation filed 14 amici curiae briefs, including the one by ECPA members. Now that the Court will issue an authoritative decision on the issue, many more amici will like present arguments to the Court on why it should rule a particular way.
What is an “Amicus” Party?
The Court considers the impact of its decisions beyond merely the two parties arguing the case; it allows third parties other than the litigants to submit briefs explaining the outcome’s ramifications and how the Court should rule on a principle at issue. These are called amicus briefs and the third parties are amicus curiae (meaning “friend of the court”). Amici parties are wholly separate from the litigants in a case, are represented by their own attorneys, and focus on the principle at stake rather than the outcome of this particular matter.
At the previous stage of the case, the ECPA Legal Update mentioned that a case eliciting dozens of amici briefs from various industries or groups signals to the Court that the importance of this case warrants a Supreme Court opinion. A similar line of thinking applies now at the merits stage: the more amici parties presenting arguments in favor of editorial freedom and opposed to compelled speech in artistic and creative endeavors, the more weight appears behind these arguments.
What is the Process for Becoming an Amicus Party?
Being an amicus party primarily requires only that an ECPA publisher lend its name to a brief which addresses some aspect of the case. A highly qualified lawyer who argues these kinds of appeals offered to donate his time to drafting an amicus brief for religious publishers in general, asking the Court to rule in favor of all publishers’ First Amendment speech rights to choose the works they do and do not publish. Multiple ECPA publishers could join this brief or individual publishers may wish to make their own arguments and submit separate amicus briefs.
Although an appellate attorney is donating his work, amicus parties commonly pay for the Court’s required printing costs which typically range from $1000-1500 per amicus brief. Inclusive of administrative time and printing costs, we estimate each participant would contribute less than $1000 each (with the amount decreasing with more participants). And each publisher may engage their counsel to review the brief and incorporate their particular interests. If multiple parties join the same brief, these costs may be shared.
For any ECPA publishers willing to join an amicus brief, the deadline to inform Flagler Law Group of your decision is by the close of business on Friday, May 27, 2022. However, a draft of the brief will likely be circulated before this date so the earlier your organization expresses interest, the more time it will have to review the substance of the arguments.
Will Joining an Amicus Brief Affect My Organization?
Aside from the shared cost and time weighing the decision to participate, there are factors to consider:
- Amicus briefs generally do not garner much attention outside of the Supreme Court and the Court’s legal circles. However, they are public documents and available to all.
- While the speech principle remains the only issue the Court will hear (it will not hear arguments on religious rights), this case does not exist in a legal vacuum. It obviously involves topics of sexuality that are culturally divisive. Legal arguments presented in the brief will only address the Court’s certified question on the topic of speech, not religious rights and sexuality, but this nuanced position may escape external perception.
- If more publishers join an amicus brief, the brief may carry more weight with the Court but the arguments may be narrow to satisfy all participants. If your organization joins on its own or with a like-minded small group, it may state those arguments most important to it.
The implications of this case affect not only ECPA publishers but any organization or industry that operates in a creative space. ECPA will continue to provide education and awareness about the case and has authorized Flagler Law Group to answer questions or consult with members about concerns.