freedom of speech

303 Creative LLC v. Elenis

Issues

Does a public accommodation law violate the Free Speech Clause of the First Amendment when it compels an artist to create custom designs that go against her beliefs?

This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. The Colorado Anti-Discrimination Act (“CADA”) limits a public accommodation’s ability to refuse services to a customer based on their identity, such as sexual orientation. 303 Creative LLC and its owner Lorie Smith argue that CADA violates their First Amendment rights to free artistic expression and religious belief. Respondent Aubrey Elenis, Director of the Colorado Civil Rights Division, counters that CADA regulates discriminatory commerce, not speech, and thus does not violate 303 Creative LLC’s First Amendment rights. The outcome of this case has heavy implications for LGBTQ+ rights, freedom of speech and religion, and creative expression.

Questions as Framed for the Court by the Parties

Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.

Colorado's Anti-Discrimination Act (“CADA”) limits a place of public accommodation’s ability to refuse services to a customer based on their identity. 303 Creative LLC v.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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advocacy of illegal action

City of Austin, Texas v. Reagan National Advertising of Texas, LLC.

Issues

Is the City of Austin’s sign code, which distinguishes between on- and off-premises signs, an unconstitutional content-based regulation of speech?

This case asks the Supreme Court to consider whether a city sign code’s differential treatment of on-premises and off-premises signs constitutes a content-based regulation of speech. The City of Austin’s sign code permits on-premises, but not off-premises, signs to be digitized, and bans the construction of new off-premises signs. Austin argues that this distinction is a lawful, content-neutral regulation. Reagan National Advertising of Texas counters that Austin’s on- versus off-premises distinction constitutes an unlawful, content-based restriction under Reed v. Town of Gilbert and the Court’s First Amendment jurisprudence. The outcome of this case has important implications for governments considering roadway safety measures and for entities who advertise through off-premises signs like billboards.

Questions as Framed for the Court by the Parties

Whether the Austin city code’s distinction between on-premises signs, which may be digitized, and off-premises signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert.

Respondents Reagan National Advertising of Austin, LLC. (“Reagan”) and Lamar Advantage Outdoor Company, L.P. (“Lamar”), are involved in the outdoor advertising business. Reagan National Advertising of Austin, Inc. v. City of Austin, at 699. In April and June 2017, Reagan applied for permits to convert their existing off-premises signs into digital signs.

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Counterman v. Colorado

Issues

Is speech a true threat, unprotected by the First Amendment, only when the speaker intended it as threatening, or is it enough for the government to show that a reasonable person would find the speech threatening?

This case asks the Supreme Court to determine whether “true threats,” which are unprotected by the Free Speech Clause of the First Amendment, may be established under a subjective or objective test. Billy Raymond Counterman argues that historical common law practice and Supreme Court precedents require that a speaker subjectively know or intend their speech to be threatening in order for the speech to be a “true threat” unprotected by the First Amendment. On the other hand, Colorado argues that a context-driven objective test is supported by precedent and permissible under the First Amendment. This case has implications for the balance between protecting people from the harmful effects of threatening speech and preventing unjust censorship of political, religious, and artistic expression.

Questions as Framed for the Court by the Parties

Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.

In 2014, a singer-songwriter named C.W. received a Facebook friend request from Billy Raymond Counterman. People v. Counterman at 1042-43. Over the next two years, Counterman proceeded to send her direct messages that C.W. found “weird” and “creepy.” Id. at 1043. C.W. never replied to any of the messages and repeatedly blocked Counterman on Facebook to prevent him from messaging her further, but he continued making new accounts and messaging her.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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Free Speech Coalition, Inc. v. Paxton

Issues

What level of judicial review is required for a court to evaluate a law that intends to protect minors from pornographic content but, as a result, burdens adults’ access to such content?

H.B. 1181 is a Texas law seeking to regulate commercial entities that publish sexual material. When more than one-third of the entities’ published material is sexually explicit, H.B. 1181 requires those entities to implement age verification systems. Free Speech Coalition argues that H.B. 1181’s age verification provision burdens adult access to constitutionally protected speech and thus the Supreme Court should apply strict scrutiny when reviewing it. Free Speech Coalition further argues that it meets the requirements for a preliminary injunction on the enforcement of H.B. 1181’s age verification provision. Paxton, on the other hand, argues that rational basis review should apply to the age verification provision because it is not content-based or speaker-based discrimination. Paxton further counters that Coalition has not proved it meets the requirements for a preliminary injunction on the enforcement of the age verification provision. The Supreme Court’s decision in this case will influence how future statutes impacting protected speech may be reviewed by courts, how state governments can regulate pornography distributors to protect minors, and how the data privacy and cybersecurity of adults who use pornography websites will be weighed by the courts.

Questions as Framed for the Court by the Parties

Whether the court of appeals erred as a matter of law in applying rational-basis review, instead of strict scrutiny, to a law burdening adults’ access to protected speech.

H.B. 1181 is a Texas law intended to apply to commercial entities that publish sexual material. Free Speech Coal. v.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his insights into this case.

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Fulton v. City of Philadelphia

Issues

Under the First Amendment, can a city prevent a private foster care agency from participating in the city’s foster care system because that agency refuses to agree to a non-discrimination policy that requires it to consider potential same-sex or unmarried foster parents?

This case asks the Court to balance First Amendment rights with the government’s interest in promoting equality. Petitioner Catholic Social Services (“CSS”) contracted with Respondent City of Philadelphia (“the City”) to provide foster care and choose foster parents for the City’s youth; however, CSS objected to the inclusion of a non-discrimination clause in its contract that required it to consider LGBT+ individuals as foster parents. CSS argues that the City’s non-discrimination clause specifically targets it as a Catholic organization, thereby infringing upon its religious beliefs under the Free Exercise Clause and compelling it to endorse LGBT+ relationships in contravention of the Free Speech Clause. The City counters that the non-discrimination clause is a policy that applies to all contractors who undertake governmental work, and that CSS cannot claim to use religious freedom to undermine the City’s strong interest in preventing discrimination. The Supreme Court’s decision in this case will implicate laws impacting religious freedom, LGBT+ issues, and equal protection.

Questions as Framed for the Court by the Parties

(1) Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim—namely that the government would allow the same conduct by someone who held different religious views—as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held;

(2) whether Employment Division v. Smith should be revisited; and

(3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.

Catholic Social Services (“CSS”) was established in 1797 in Philadelphia (“the City”), Pennsylvania as a religious non-profit foster care service. Fulton v. City of Philadelphia at 12. Although affiliated with the Archdiocese of Philadelphia, CSS is regulated both by the state of Pennsylvania and the City. Id. at 12–13.

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Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his insights into this case.

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