First Amendment fight? Or novel defense of anti-gay prejudice?

Any reporter worthy of her deadline chops knows that the most loud-mouthed defenders of free speech often have no clue how the First Amendment works. Social media banning your hate speech? Sorry: Private and publicly traded companies can run or strike whatever they want. Unfair to punish Alex Jones for sharing his opinions and theories on Sandy Hook? Sorry, InfoWars morons. You can’t just say any damn thing you want in America, especially if the lies in turn threaten the lives of grieving parents. At every level of a free society, freedom demands responsibility.  

No surprise that these days, much of the confusion over the First Amendment comes via the political right. An extraordinary $1.6 billion defamation suit brought by Dominion Voting Systems against Fox News is putting to test a no-brainer question straight outta Journalism 101: Is it permissible for a media outlet to spread lies about a company again and again and again and then say sorry because you were just reporting what unreliable sources told you?

Hmmm, that defense may be a lie in and of itself to save face and avoid a huge legal penalty. Fox peddled falsehoods about the 2020 election repeatedly and the evidence so far suggests they damn well knew it. If you want to attack a private citizen or reputable company, you corroborate it with evidence, not hotheaded, partisan opinion under the guise of free speech.

Still, another right-wing First Amendment kerfuffle — this time bolstered by the religious right and now before the U.S. Supreme Court — has me more than a bit confused, vexed and even a tad sympathetic to the plaintiff. In 303 Creative LLC v. Elenis, graphic artist Lorie Smith alleges that her free speech rights are being violated because … well, it’s a bit complicated.

Smith wants to expand her business to create create custom wedding websites, but not for gays and lesbians. As a conservative Christian, she opposes same-sex marriage and wants to put a notice on her website to that effect. Trouble is that such a message would violate Colorado law, which bars public businesses from discriminating against LGBTQ people or announcing an intent to do so. 

Smith has countered that Colorado is squelching her free speech by dictating what she can and cannot say as an artist — first, by creating messages inconsistent with her religious beliefs; and second, by barring her from announcing those beliefs on her website.

Times like these I’m glad I’m not a Supreme Court justice.

Wholesome Christian values of prejudice?

This issue is thorny no matter how you look at it. If we’re to call a spade a spade, Lorie Smith seemingly qualifies for the title of smug, self-righteous, white-bread bigot. Using her logic, I could start a business where as leader of the Church of Common Sense, I deny all my services to evangelical Christians. Would she embrace that? I dunno: Maybe she’d trade high fives with me because I understand the principle she’s fighting to uphold. 

At the very least, this is great PR for 303 Creative and she’d have to be insincere or naive not to see it. Whether it’s her intent, Smith’s name is now on the lips of every wholesome evangelical family that wants to make a stand for the sanctity of marriage as between a man and a woman. Strange, since the sanctity of evangelical Christian marriage brings to mind images of the Most Righteous Jerry Falwell Jr. watching the pool boy copulate with his wife, and the sexual abuse shenanigans of the Southern Baptist Convention. If Smith truly believed in the institution of marriage, she might take her cue from faithful same-sex couples with decades of fidelity under their belts as opposed to church hypocrites, abusers and adulterers of every stripe. 

What’s more, the juxtaposition of Smith’s Supreme Court fight with current events also makes for terrible optics. Her 303 Creative office is just a one hour drive due north from Club Q, the LGBTQ+ nightclub, where last month a shooter killed five and wounded 18 in what authorities are calling a hate crime.  

Colorado’s legal team says that exempting Smith from CADA would “upend anti-discrimination law and other laws too.” It’s easy to see how this would work. If I, as a member of the Ku Klux Church, were to object to making wedding invitations for African Americans by citing a SCOTUS ruling in Smith’s favor, I wonder how close that takes us back to the Jim Crow days of water fountains for whites only.

Despite all this, I’m thinking about the quote (erroneously) attributed to Voltaire in 1903, “I disapprove of what you say, but I will defend to the death your right to say it.” Here’s why. 

A warped perspective meets a First Amendment lens

I would never trust this Supreme Court, especially this ideologically-stilted Supreme Court, to file a fair verdict in this or nearly any case touching religion. Meanwhile, Clarence Thomas stands as the world’s most enduring example of a bubble-headed rubber stamp for conservative causes. And as the State of Colorado argues, a ruling in support of 303 could give safe harbor to racists of all kinds under the banner of free speech.

But it’s worth asking ourselves whether Smith, in being told what she can and cannot say as an artist by state law, has a legitimate First Amendment gripe. It’s not as though she’s a newbie to this case; she’s been in the courts since at least 2016, each time losing and appealing up the ladder.

Clearly and without question, she’s running afoul of Colorado’s anti-discrimination laws. But just as clearly, she has religious beliefs that, even if arguably backward, she holds with conviction in a nation that guarantees the separation church and state.

Not that freedom of speech is the tie-breaker, but I have some sympathy for Smith here — some. She certainly deserves her day in court and the implications of a verdict that goes against her are likewise worth considering. A government that protects the truly disenfranchised against discrimination could just as easily ask any of us to say or not say things that undercut our free speech rights. This is not a question of politics nor religion but expression.

It’s a shame that this case doesn’t exist in a vacuum where it can be judged on its free speech merits alone. If so, I’d likely side with Smith. Freedom of expression is under attack everywhere, and liberals who would condemn Smith to an ideological hellfire would do well to consider Florida’s “don’t say gay” travesty, the current red-state book banning frenzy and a host of laws that outlaw the teaching of Critical Race Theory — likely written by people who’ve never even read a single phrase by Cornell West or W. E. B. DuBois, or in the 1619 Project.

Of protections and projectiles

Alas, we live on a flawed orb where values, rights and entitlements often come at each other from paradoxical angles. And in that light, Smith has seemingly picked the right issue in the wrong milieu at the wrong time. Maybe if a violent, anti-gay travesty hadn’t happened just days ago in her own backyard. Maybe if conservative lawmakers weren’t so intent on gleefully attacking gay and transgender rights at every turn. Maybe if conservative Christinas who believe as Smith does hadn’t fought so hard and unrepentantly to erase a woman’s right to govern her own body.

I get it, I get it: Those aren’t First Amendment concerns. But at the end of the day, citizens who would use freedom of speech as a weapon as opposed to a protection need to be called out. As Slate’s Mark Joseph Stern wrote just last week:

A decision for Smith will unleash increasingly extreme assaults on civil rights law…  Trump judges are already champing at the bit to legalize broad swathes of discrimination. 303 Creative may hand them a new weapon against civil rights law.

Smith may not be a weaponizer. Maybe she is.

Either way, she’s certainly on the verge of giving ammunition to those who are.

Lou Carlozo is the Editor and Publisher of Talking Biz News, and the Editor In Chief of Qwoted. All opinions expressed come courtesy of the good old First Amendment. Email lou@qwoted.com or connect on LinkedIn.