Free speech includes “freedom for the thought that we hate.” As Supreme Court Justice Oliver Wendell Holmes noted, “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”
But one of the “biggest filers” of briefs in the Supreme Court has seemingly turned against this principle. The Cato Institute recently dropped its defense of free speech in a Supreme Court case where it found the speaker’s thoughts distasteful — even though continuing to defend free speech would have been very easy, and a loss in the case would set a very dangerous precedent allowing the government to force people to engage in speech that violates their conscience.
The case is 303 Creative v. Elenis, which will be argued before the Supreme Court this fall. It involves Lorie Smith, whose graphic and website design firm, 303 Creative, wants to expand into producing websites for weddings. Although Smith is willing to design graphics and websites for gay customers, her religious convictions preclude her from creating graphics and websites announcing and celebrating marriages of same-sex couples. But the Colorado Anti-Discrimination Act requires her to create custom web-sites celebrating the marriages of same-sex couples if she does so for opposite-sex couples. The question the Supreme Court will decide is whether, in applying a public-accommodation law, the state may compel speech through the creation of an expressive product on the grounds that the product is “custom and unique.”
The answer is “no,” according to many civil liberties groups. 303 Creative is not a public accommodation in the traditional sense. And the First Amendment generally forbids using public-accommodation or civil-rights laws to compel speech, as the Supreme Court ruled in Hurley v. Irish-American Gay, Lesbian & Bisexual Group (1995).
The Cato Institute itself once recognized that this compelled speech violated the First Amendment. In October 2021, it filed an amicus brief urging the Supreme Court to hear Smith’s appeal of a lower court decision allowing the government to compel speech when the speech is deemed to be a “unique” service, citing the dangerous precedent that would create for free-speech rights. The Supreme Court agreed to hear that appeal on February 22.
But this week, the Cato Institute declined to resubmit its earlier brief in support of free speech to the justices. Its October 2021 brief had been submitted in support of the petition to hear the case, a stage at which briefs are generally read only by some of the Supreme Court clerks (the so-called “Cert Pool,” who recommend to the justices whether to hear a case) and not most of the justices themselves.
Resubmitting the brief this week — as a brief “on the merits” — would have made it likely that the brief would be read by justices themselves. Supreme Court justices tend to read the amicus briefs submitted at the “merits” stage, after they have granted review of the case, not amicus briefs submitted when first considering whether to hear a case. They can’t possibly read all of the briefs seeking review from the Supreme Court, because in a typical year, 7000-8000 people ask the Supreme Court to hear their case (only 70-80 such requests are granted).
But the Cato Institute declined to resubmit its brief.
Why? It moved politically to the left, away from free speech. The Cato Institute lawyer who filed the brief in October 2021 — the outspoken free-speech advocate Ilya Shapiro — left the Cato Institute in early 2022. Shapiro seems to have lost an internal power struggle to other Cato Institute staffers further to his left who are less willing to defend speech they view as right-wing or “hateful.”
16 other amicus briefs were filed this week in the Supreme Court, in support of the free-speech argument — by civil liberties groups, a gay law professor, conservative and religious groups, and state legislators. But not by the Cato Institute.
It would have taken the Cato Institute virtually no effort to simply resubmit its earlier brief. It could have just changed the caption of the earlier brief and a few other things in it, and resubmitted it. A blogger at this blog is a lawyer who once submitted essentially the same brief twice to a state supreme court, the first time in support of a teacher’s petition asking the state supreme court to hear his First Amendment case, and the second time after the state supreme court agreed to hear that case. (The first brief was read only by a panel of the state supreme court, the second brief by the entire state supreme court).
The fact that the Cato Institute didn’t bother to make even this minimal effort to resubmit its brief in favor of free speech is because it didn’t want the brief to be read by the justices. It didn’t want to promote “freedom for the thought that we hate” — in this case, opposition to same-sex marriage, which the Cato Institute avidly supports.
In Obergefell v. Hodges, the Cato Institute’s then-lawyer, Ilya Shapiro, filed a famous amicus brief urging the Supreme Court to strike down bans on gay marriage, which the Supreme Court did in that landmark ruling, which made same-sex marriage a constitutional right.
Out of principle, Ilya Shapiro later chose to defend the free speech of someone whose speech he passionately disagreed with (an opponent of same-sex marriage), in the 303 Creative v. Elenis case.
But Shapiro has now left the Cato Institute. And the Cato Institute’s principles have apparently left with him.
By not filing a brief in support of free speech, when it would be effortless to do so, its current staff have chosen not to defend “freedom for the thought that we hate,” even though a principled First Amendment advocate would do that.
It is as if, seeing a trolley bearing down on the First Amendment, the Cato Institute deliberately chose not to pull the lever, in hopes that First Amendment rights would be trampled as a result.
