Speech and Diversity: Supreme Court Opinions Defend Speech Rights of Publishers and Address Diversity Initiatives
By Craig Gipson
The U.S. Supreme Court released two of its most high-profile opinions at the end of its term: the first impacting the free speech rights of publishers and creative industries, and the second effectively ending affirmative action policies in college admissions, although not impacting current employer diversity initiatives.
Speech Rights and Public Accommodation Laws:
303 Creative v. Elenis
In 303 Creative v. Elenis, the Court reinforced the First Amendment’s protection of speech, including the right not to speak.  Six justices sided with a web designer who requested relief from a Colorado law requiring her to create expressive content that violated her closely held religious beliefs and conscience. Several ECPA members participated in submitting a “friend of the Court” brief, supporting the rights of those in creative industries to choose what they do and do not publish.
The Court listed a litany of cases supporting the freedom to choose when and what to speak before homing in on the primary Constitutional transgression of Colorado’s public accommodation law: “Colorado seeks to compel this speech in order to excis[e] certain ideas or viewpoints from the public dialogue.” Ultimately, the Court found that the state can incentivize certain behaviors and promote certain policies, but it cannot “excise” any opinion from being expressed by private citizens “on pain of penalty.”
303 Creative, while protecting expressly creative products and services, is likely to be a fairly narrow opinion.  For speech rights to prevail over public accommodation laws, the products or services must be customized and expressive in nature. If the web designer offered certain templates for customers to choose from instead of custom websites, the case’s outcome likely differs. Services which are only arguably expressive—such as baking cakes or creating floral arrangements—are potentially beyond the bounds of the decision. Also, the opinion only applies when the speaker’s objection is to the message being coerced, not the identity of the customer. The web designer made clear in testimony that she had no reservations about serving same-sex customers; she only objected to having to create certain messages about weddings or marriage.
The 303 Creative opinion highlights a troubling trend across the political spectrum to legally restrict or punish unpopular speech. Florida recently proposed a bill which would lower the threshold for bringing libel claims against content publishers. Washington state sought to pass a bill which included a hotline to report “offensively biased statements.”  The Court’s opinion in 303 Creative and the political opposition triggered by the Florida and Washington bills demonstrate an institutional resistance to these efforts, but the current tolerance for speech restrictions appears greater than in past decades. The Free Speech Center has noted that in recent years, many local governments seem to have reverted to anti-speech tactics not seen since the “Red Scare” of the 1950s.  Whether the actions of state or local governments or influential booksellers, the current environment threatening the proverbial “marketplace of ideas” requires greater vigilance among the creative industries.
Students for Fair Admissions v. Harvard College
The Court’s opinion in Students for Fair Admissions addressed using race as one of the factors in a wholistic review of a student’s college application.  The opinion is limited to the context of higher education and does not apply to employment. While the justices acknowledged the noble goals of considering race in college admissions, they found these goals to be too vague and incapable of measurement. How, the Court questioned, can courts determine whether the “exchange of ideas [resulting from an admission program including race] is ‘robust’?” And how would courts determine when universities had accomplished these goals, rendering “the perilous remedy of racial preferences” no longer necessary?
For groups like ECPA and ECPA-member employers that have undertaken diversity initiatives, the opinion requires no immediate changes. Federal law already prohibits explicit quotas and preferences but allows affirmative action programs when employers can demonstrate a “material underrepresentation” or “manifest imbalance” as to race, ethnicity, or gender in their workforce. Organizations can create targeted programs to enhance opportunities for underrepresented groups through broader outreach, training, and recruitment. The Equal Employment Opportunity Commission issued a statement soon after the opinion’s release, reminding employers that they may continue “to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”  ECPA’s efforts to encourage a Christian publishing workforce reflective of the diversity of God’s kingdom remains lawful.
ECPA and Flagler Law Group will continue to monitor speech and other legal issues affecting ECPA and its members.
 303 Creative LLC et. al. v. Elenis et al., No. 21-476 (June 30, 2023)
 Dale Carpenter, How to Read 303 Creative v. Elenis (July 3, 2023) https://reason.com/volokh/2023/07/03/how-to-read-303-creative-v-elenis/
 Fla. H.B. 991 (2023); Wash. S.B. 5427 (2022-23)
 Rebecca Boone, Experts say attacks on free speech are rising across the U.S. (March 15, 2023)
 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199 (June 29, 2023)
 Statement from EEOC Chair Charlotte A. Burrows on Supreme Court Ruling on College Affirmative Action Programs (June 29, 2023) https://www.eeoc.gov/newsroom/statement-eeoc-chair-charlotte-burrows-supreme-court-ruling-college-affirmative-action