At Dorf on Law, Eric Segall: Of Free Speech, Non-Discrimination, and the Futility of Originalism. From the introduction:
Next week the Court will hear oral argument in 303 Creative LLC v. Elenis. This controversy involves a wedding website designer who does not want to extend her services to same-sex weddings despite a Colorado law requiring her to do so. The case is a hard one because it pits important principles against each other: the right of the people to free expression against the state's interest in non-discrimination. …
The point I want to emphasize about this case is how useless originalism is to its resolution and that no one should pretend otherwise. To illustrate this futility, I will focus on an amicus brief (in support of the Court hearing the case) written by a number of all-star first amendment and originalist scholars including Michael McConnell, Richard Epstein, Mark Scarberry, Larry Alexander, Robert George, Steven Smith, and numerous other constitutional law heavyweights. If they can't show the relevance of originalism to this case, it is likely no one can. And, as shown below, they cannot. …
And from the core of the argument:
The brief then discusses what all first amendment scholars know: the principal evil that Blackstone and the founding fathers were afraid of was prior restraints of speech (not after the fact punishment for speech already uttered). The brief says that in "16th and 17th century England, Parliament passed licensing laws 'to contain the evils of the printing press….' These 'licensing laws' were the core abuse' to which the First Amendment was directed."
Exactly. But notice this sleight of hand. Immediately before that sentence the brief also says: "Recognizing the limitations of prohibiting prior restraints only, the Framers of the First Amendment sought to broaden the protection of free speech." There is no citation appended to that sentence or support for it. And, as I've written before, relying on the work of Jud Campbell and others, that idea simply has no weight or history behind it. The infamous example of the Alien and Sedition Acts enacted shortly after ratification, which punished core political speech is one example; blasphemy prosecutions being allowed well into the 19th century constitute another. As Jud has repeatedly pointed out, our conception of free speech today is simply not traceable to the founding era (nor 1868).
And in conclusion (after further discussion of the originalist brief):
Several things should be clear. First, the authors of this brief spend no time discussing the important legal scholarship by Campbell and others that the framers and the public thought that the first amendment's free speech clause was almost entirely concerned with prior restraints. Second, as other briefs in the case show, at the founding and up through the Reconstruction Amendments, there was a strong common law rule that places of public accommodations, like the plaintiff's business, had to accept all customers. As the brief for the Constitutional Accountability Center explains: "Public accommodations laws, which have existed for centuries—long before the proliferation of ready-made consumer products— require one that has made profession of a public employment like innkeepers or blacksmiths, to be bound to the utmost extent of that employment to serve the public.” There is nothing in the Constitution's original meaning that suggests the free speech principle overrides that common law principle that Colorado is trying to further with its law.
Finally, as I wrote on this blog previously, all constitutional rights at the founding were subject to regulation if the public interest was weighty enough. There can be no question that the non-discrimination principle Colorado's law furthers is important and compelling public policy. So, as I said at the beginning, in today's world, though not in 1791, there are two important principles at stake in this case: free expression and combating invidious discrimination. I am not sure how I would balance those two ideals on these facts. What I am positive about is that there is nothing in the Constitution's original meaning to help us with that difficult task.
I'm not a First Amendment scholar so I don't have definite views on the merits. But it seems to me that Professor Segall is making two distinct and inconsistent claims: (1) originalism doesn't support the petitioner's argument in this case and (2) originalism doesn't help resolve this case. From an originalist perspective, if he's right about the lack of support in original meaning for the petitioner's case, then originalism does resolve it: petitioner loses. Perhaps that's an unsatisfactory resolution in some people's view but that's the way originalism works. Far from showing that originalism is "useless," it shows exactly how originalism can resolve a modern dispute (if the Court lets it).
(As an aside, though, I'm dubious about the prior-restraints-only reading of the First Amendment, because that seems to give the Amendment really very little force; there is some substantial scholarship pushing back on it, and perhaps the brief should have cited it if it didn't — but again it's not my area).
ERIC SEGALL responds: “In his normative hat, Eric agrees that if the plaintiff can’t show text or history clearly shows she should win, she should lose. But in his doctrinal hat taking precedent seriously, he thinks it’s a hard case.”
Posted at 6:33 AM