Free Speech, Publishing, and the Supreme Court: Urgent Action Invited From ECPA Members
By Flagler Law Group
Does the law allow publishers to choose what to publish? A recent free speech decision by an influential federal court casts doubt on the answer to that question. The court found that a website designer must create websites celebrating same-sex marriage, even if doing so violates her religious principles. The website designer plans to appeal the decision to the Supreme Court. This situation creates an opportunity for the publishing community to highlight to the Court the crucial importance of editorial freedom to all publishers, regardless of their viewpoint on the case’s sexuality issue. ECPA members concerned about the implications of this decision may participate in a “friend of the court” brief asking the Court to bolster First Amendment protection for editorial freedom, but time is of the essence.
What Is the Case About?
A website designer challenged a Colorado state law that requires her to create and publish websites for marriage ceremonies that run contrary to her religious principles. She makes no objection to serving same-sex customers generally, she only wishes not to offer her services to create websites for wedding ceremonies to which she objects. The court ultimately found that the designer controlled a “monopoly” of her unique expressive services, and therefore the State of Colorado may require that she publish content she objects to. The judges reached this alarming 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 race, 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 and ministries located within the court system’s 10th 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 Alliance Defending Freedom (ADF) represents the website designer and will appeal the case to the Supreme Court. But the success of the appeal depends in part on briefs filed by interested organizations which are not parties to the case, like ECPA publishers.
Supreme Court Procedure
The Supreme Court does not hear every appeal. In fact, of more than 7,000 appeals each year, the Court agrees to hear only 100-150. However, the novel speech element in this case and the fact that the law concerning compelled speech would differ in various parts of the country makes this a strong candidate for acceptance.
Because the Court only agrees to hear a limited number of cases, a successful appeal requires persuading the Court in two steps. This first step—convincing the Court to hear the case—is called “granting certiorari” or “granting cert” for short. If the Court “grants cert,” the second step is to argue the merits of the case.
What is an “Amicus” Party?
When the Court considers those 7,000 appeals, one of the factors it considers is how important a case is to the law—is this an issue that merits a Supreme Court decision? In making this determination, it allows third parties other than the litigants to submit briefs explaining the impact of a case and why the Court should hear it. These are called amicus briefs and the third parties are amicus curiae (meaning “friend of the court”). Amicus 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. A case that elicits dozens of amicus briefs from parties in different industries signals to the Court the importance of the case. This is why ADF is attempting to elicit the support of ECPA publishers and all kinds of creative organizations. ECPA publishers may choose to participate as an amicus party at the first phase (convincing the Court to hear the case), the second phase, or both. Of course, if the first phase is unsuccessful, the case will stand as-is.
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 draft an amicus brief for religious publishers in general, asking the Court to take the case to affirm that the First Amendment protects all publishers’ right 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. And each publisher may engage its 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, October 8, 2021. To do so, please contact Craig Gipson at firstname.lastname@example.org.
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 at issue weighs heavily, this case does not exist in a legal vacuum. It obviously involves topics of sexuality that are culturally divisive. An amicus brief may disclaim commenting on the matters of sexuality while focusing on the speech principle 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 and religious organizations 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.