The Free Speech Docket – 2022-2023 Update

This seminar will cover three of the Court’s 2023 pending freedom of expression cases:  303 Creative v. Elenis; United States v. Hansen; Counterman v. Colorado.

Note:   If any is decided by the date of our seminar, I will discuss the SCOTUS decision. Otherwise, I will preview the following cases.

303 Creative v. Elenis: Colorado website designer Lorie Smith wants to expand her business to create custom wedding websites, but she opposes same-sex marriage on religious grounds and wants to put a notice on her own website to explain that – a message that would violate Colorado law, which bars businesses that are open to the public from discriminating against LGBTQ people or announcing an intent to do so. 

The Court took cert only on the free speech issue, which raises thorny questions about compelled speech versus conduct, and the extent to which anti-discrimination laws can be applied against private companies that claim to offer expressive services.

The oral arguments suggest a majority will rule for the web-designer, but may struggle to write an opinion sufficiently narrow to prevent a cascade of conscience-based refusals to serve LBGTQ customers.

United States v. Hansen: Issue before the Court in Hansen  is whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

The oral arguments indicated several members of the Court have serious concerns about the reach of the law on its face, because it could be applied to speech that falls short of criminal incitement. The government argues the law covers speech “integral to criminal conduct” and is in keeping with other criminal statutes

Counterman v. Colorado: Issue before the Court in Counterman  is 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.

There is a circuit split on this point, and many hope the Court will resolve this critical issue.  Colorado has offered a path in defense of its approach to “true threats” that uses the objective test but adds several contextual factors to avoid sweeping into this exception hyperbolic or other speech necessary to give “breathing room” for heated words but still protect victims of such threats from the fear and other harms such speech causes when a reasonable person would regard them as true threats.   As with many current free speech issues, the spike in vitriolic speech communicated via the internet makes this an especially difficult question to resolve.  

FACULTY:
Toni M. Massaro, Regents Professor, Milton O. Riepe Chair of Constitutional Law and Dean Emerita University of Arizona James E. Rogers College of Law

MODERATOR:
Adriane Hofmeyr, Staff Attorney at the Arizona Supreme Court