The Free Markets Case You Haven’t Heard About

A small, independent website designer in Colorado is getting national attention. Why? The US Supreme Court heard a case on Monday about whether the government can force her to say something that goes against her personal beliefs.

While it’s one of the biggest free-speech cases this Supreme Court term, you may not have heard about the ramifications for free markets and the ability of small businesses, particularly individual creative professionals, to employ their talents without government interference.

Many headlines cast the case as being about discrimination, suggesting that whether a creative professional can refuse to speak a certain message is the same as refusing to serve customers based on who they are.

It’s not.

The distinction between message and identity is critical to the ability of all people, particularly people with minority viewpoints, to create the diverse and vibrant society that we all enjoy. This includes the ability to serve market niches, or to develop new markets, without government stepping in to dictate the nature of the service.

From immigrants bringing the culture of their native lands to specialize in businesses satisfying the needs of their fellow immigrants, and in the process sharing that culture with their new community, to social entrepreneurs focused on delivering the message of social change, the freedom to serve a particular market without government pressure to homogenize services has been critical to the spontaneous expansion of the rich and intricate society in which we live.

That’s what is at stake in 303 Creative. Lori Smith is the Colorado designer who brought this case, 303 Creative LLC v. Elenis. As she’s built her small business, she’s found a market niche developing a range of sites for causes she enjoys working for, from animal rights to veterans groups, and for a diverse array of people, including LGBTQ customers. Everyone involved agrees that Smith serves all customers regardless of who they are.

But they don’t agree on what she is allowed to say, or not say. Colorado insists that she must express views she doesn’t believe about marriage or stay out of the market altogether. That raises the inevitable risk of downstream market effects that are likely to cause mayhem if Lori’s ability, and the ability of creative professionals like her, to create their own brands is not roundly defended.

But perhaps more disturbing than Colorado’s attempt to control Lori’s speech is the reasoning the Tenth Circuit applied to justify upholding the law. Unlike other similar cases, there is no dispute here about whether creating website content is speech. Colorado stipulated that it is and the Tenth Circuit acknowledged that Colorado is compelling Lori to speak a message she does not wish to speak. This means that Colorado’s application of the law to Lori Smith is subject to strict scrutiny, which is a test the government almost always fails. But the Tenth Circuit upheld the law for a unique, and heretofore unheard of reason: that an individual artist, “due to the unique nature of [her] services…is more similar to a monopoly.”

This “monopoly-of-one” theory is imported from inapposite commercial law, in which monopoly power focuses on whether there are viable substitutes for a seller’s goods or services. But monopoly power does not turn, as the Tenth Circuit held, on whether an individual artist is unique or delivers superior service, nor on whether a particular invention or creation is unique. If applied to individuals, it would create a world in which any expressive professional would immediately become subject to expression-on-demand if that expressive professional is innovative and thus “unique.” Applied to a market that has numerous entrants in just the local area, and that provides services that can be delivered from literally any place on the planet, the monopoly-of-one theory is particularly absurd.

If government can tell creatives what messages they must deliver, the impact will extend far beyond Christian artists to place all expressive professionals at risk. Attorneys, educators, mental health professionals, and any other professional who relies on speech to do her job, if she does that job uniquely well, has a monopoly on her own talents. To any expressive professional who does not want to speak on demand, the effect will be chilling.

A web designer who recognizes growing demand and opportunity relating to quinceañera celebrations, for example, may develop a unique planning platform, drawing together services from other providers, connecting remote loved ones, and supporting communications, all with special insight into cultural significance and fitting tone to make the day as special as possible. Those services, reflecting the designer’s insight and skill, would be unique.

But that success would not give her a monopoly over web design simply because she has developed a niche within the broader market. Nor should the government be empowered to insist that she modify her message to support debutante balls, retirement parties, or gender reveals, even if she had no objection to those celebrations, but simply wasn’t interested or feared extension would water down her brand. Now, one may argue that the law would never be enforced against such a business because the distinctions it draws between services are not discrimination. But that is simply saying that the law could be enforced only against disfavored viewpoints, leaving favored businesses free to prosper. This is shaky ground on which to build a business in a world where viewpoints that are favored today may be disfavored tomorrow.

While the ramifications of 303 Creative may have far-reaching effects if decided against protecting speech rights, a decision upholding the speech rights of creative professionals will leave us largely where we are today, with a variety of speakers delivering a broad range of messages via a myriad of diverse businesses that reflect the individuality and ingenuity of their owners and the market demand. More than what’s perceived as a culture-war fight, 303 Creative may have significant implications for the freedom of market participants to develop and sell their own unique talents without government regulation of what they may say.

Cynthia Crawford

Cynthia Fleming Crawford is senior policy counsel at Americans for Prosperity Foundation which filed amicus briefs in support of 303 Creative, available here and here. Ms. Crawford received her JD from the Georgetown University Law Center, an MA in American Government from Georgetown University, an MBA from the Johnson School of Management at Cornell University, and a BA in Applied Mathematics from the University of California, Berkeley.

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