Your free speech is on the docket during this Supreme Court term – Americans for Prosperity

Your free speech is on the docket during this Supreme Court term Oct 14, 2022 by Casey Mattox

October is the best month of the year. Its a fact. The weather is the best, the leaves are changing, football is in full swing, and the U.S. Supreme Court returns to session.

The Court has only filled about half of its case load for the 2022-2023 term. And it already looks like a significant year for free speech at the Supreme Court.

Here are the cases Im watching:

Can Colorado compel a web designer to design custom websites celebrating same-sex marriage contrary to the artists sincerely held religious beliefs?

Background:Colorado and lower courts agreed that they were compelling 303 Creatives owner, Lorie Smith, to speak. Colorado also agreed that Smith doesnt discriminate on the basis of the customers classifications, including sexual orientation, but decides on her clients based on the requested content.

In other words, she serves customers regardless of their orientation for various projects. But she declines to create tailored website content for views that go against her own. Nevertheless, the 10th Circuit held that the compelled speech here was justified by Colorados interest in combatting discrimination.

Free Speech Implications:As my AFP colleague Cindy Crawfordwrotelast year,

Displacing long-held understanding of First Amendment protection of free speech to compel speech on demand whenever government declares that certain messages must be delivered would place all expressive professionals at risk.

And Smith partnered with Jack Phillips (you might recognize his name fromMasterpiece Cakeshop v. Colorado Civil Rights Commissionor from recentlybeing sued again) to write aUSA TODAY op-ed, asserting that no one should be forced to speak messages that violate their core convictions.

Although not principally a First Amendment case, this case could affect free speech online, as its related to the legal protection afforded to social media platforms and search engines.

And with the Courts decision to hear a similar case,Twitter v. Taamneh, the Courts decisions in these cases could significantly affect the platforms liability for their users speech and thus how they moderate user content.

Background:After Nohemi Gonzalez was killed in a 2015 ISIS terrorist attack, her family sued Google, claiming that YouTube (which is owned by Google) hosted videos in which ISIS radicalized viewers and incited violence. Google pointed to Section 230 of the Communications Decency Act in its defense, a law that shields platforms from liability for their users speech online.

Free Speech Implications:Withother major cases working their way to the Court dealing with state laws regulating social media platforms, these cases and 303 Creative (applying of a state law to production of website content) are likely to have broader implications for the future of free speech online. See the sevenprinciples for reforming Section 230 that dont include policing online speech.

Finally, the Court is being asked to take up an intriguing case about parody that also gets at a major problem for anyone seeking to hold government accountable for violating First Amendment rights qualified immunity.

Yes, the same legal doctrine that is most often associated with police officers use of force applies to all kinds of government officials even university officials decisions to censor student speech. AsIve written before, qualified immunitymust end. But the underlying First Amendment issues are also interesting.

Background:After Anthony Novak created a parody Facebook page to make fun of his local police department, the police department charged him with a felony and searched his apartment. After Novak was found not guilty by a jury, he tried to file a civil rights lawsuit against the officers, but the 6th Circuit granted the police officers qualified immunity.

Free Speech Implications:If the First Amendment means anything, it surely means that an individual can mock the government without fear of being arrested, as the Institute for Justice hasnoted.

If we must continue the judicially invented doctrine of qualified immunity, it should not apply where government officials were under no threat and had to make no split-second judgment and nevertheless undermined First Amendment rights.

One fun note about Novak v. City of Parma: The Onion, a satirical website, filed a friend-of-the-court brief,thats well worth a read: Americans can be put in jail for poking fun at the government? This was a surprise to Americas Finest News Source and an uncomfortable learning experience for its editorial team.

The brief also called the federal judiciary total Latin dorks. I mean, veritas.

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Your free speech is on the docket during this Supreme Court term - Americans for Prosperity