A website creator is using the Second Amendment to try and upend the First
A website creator that doesn’t want to build websites for gay people is resorting to a Second Amendment case to win. Will the Court bite?
In June, the Court decided New York State Rifle & Pistol Association v. Bruen, a Second Amendment case. The Court held that New York’s restrictions on open carry were unconstitutional. With the exception of Dobbs v. Jackson Women’s Health Organization, which overruled Roe, Bruen was a term-ending blockbuster.
Bruen’s effects on the Second Amendment have already been felt around the country. One federal court recently held unconstitutional a law prohibiting possession of firearms with obliterated serial numbers. Another struck down New York’s suite of laws passed in response to Bruen.
But Bruen is as much a case about constitutional interpretation across the Bill of Rights as it is about the Second Amendment. And litigants are already putting its retrograde “history only” approach to work in other constitutional contexts, including freedom of speech.
This term the Supreme Court will decide a case called 303 Creative LLC v. Elenis. The question is whether applying Colorado’s “public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
In 303 Creative’s briefing last month, it cited Bruen and argued for a “bright-line rule” to be adopted. According to 303, “the First Amendment textually and historically protects the creation and distribution of . . . commissioned websites.” Thus, the argument goes, “Colorado must show that its speech compulsion ‘is consistent with this Nation’s historical tradition’ to justify the State’s regulation.”
Why is a website creator citing a Second Amendment case in one about the limits of the First? And why is that same creator advocating for a form of interpretation unknown in the First Amendment context?
The reason is simple: Bruen suggested a dramatic reimagining of how we should understand and interpret constitution rights, including the First Amendment, by reference to our national history and tradition.
You can hardly blame 303 for accepting the Court’s invitation.
While the controversy in Bruen was whether New York’s “may issue” licensing law was constitutional, the case gave the Court — and Bruen’s author, Justice Thomas — the opportunity to clarify how lower courts should interpret the Second Amendment in subsequent cases. And its this analysis that risks bleeding into other constitutional areas.
The Court first rejected the prevailing two-part test that had developed in lower courts after the Court’s decisions in District of Columbia v. Heller and McDonald v. Chicago, which first recognized a personal right to carry firearms.
That two-part test began with asking whether the a challenged law fell outside the scope of the Second Amendment as originally understood, and it ended with courts asking “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.”
This last bit is called “means-end scrutiny,” and might save laws from invalidity even if they lacked a historical pedigree. It gives courts the important opportunity to consider the relative interests in the law as weighed against the relative intrusion on constitutional rights.
The Bruen Court, however, found that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” To inform the textual analysis, courts must look to history (and only to history) to decide whether the government had shown “that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” And that’s it.
In short, the Court did away with the second part of the test, the “means-end scrutiny.” As Justice Samuel Alito expanded on in his concurrence, means-end scrutiny was improper because it “places no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun.”
If that was all the Court did it’s unlikely that we would see the website creator in 303 Creative invoking Bruen. But the Court in Bruen did not confine itself to altering just the Second Amendment. Instead, it decided to rationalize its jettisoning of means-end scrutiny by reference to other constitutional rights, like the First.
Resort to “text and history” alone, the Court wrote, “accorded with how we protect other constitutional rights.” Under the First Amendment, it said, the government bears the burden of proof to uphold a regulation of speech. That burden requires the government to “generally point to historical evidence about the reach of the First Amendment’s protections.”
For example, United States v. Stevens placed the “burden on the government to show that a type of speech belongs to a ‘historic and traditional category’ of constitutionally unprotected speech ‘long familiar to the bar.’”
In other words, the Court suggested that, much like Bruen and the Second Amendment, the principal — perhaps exclusive — inquiry in the First Amendment context was the historical tradition of that Amendment. And, further, that courts should not, indeed must not, conduct any means-end scrutiny.
303’s brief was not the first argument recognizing Bruen’s applicability to the First Amendment. Weeks after Bruen came down, a Federalist Society contributor (who also happens to work for Alliance Defending Freedom, the organization that is counsel for 303) explained, “The stage may be set for a substantial clarification of free-speech jurisprudence — one more grounded in the text and history of the First Amendment.”
The problem is that this simply is not how the First Amendment works. First Amendment case law is decidedly ahistorical. For good reason too: we used to throw people in jail for things like political criticism, blasphemy, and bad tendency-inspiring speech (whatever that is). As I’ve said elsewhere, “None of this is something we should be trying to resurrect. Half the country would be in jail.”
While Bruen’s equivalency between the First and Second Amendment is provably false, 303 Creative’s resort to it makes sense as a majority of the Court is now on the record in Bruen recasting the Court’s prior First Amendment precedent in two dramatic ways.
First, while the Court has — in general — looked to history to help it understand what speech is protected by the First Amendment, it has nevertheless extended constitutional protections even to speech that has been historically unprotected.
Second, the Court has never held that the proper approach to understanding the scope of First Amendment speech rights in any given case is solely through an analysis of the Amendment’s text, history, and tradition.
Bruen’s gaslighting on both points is a harbinger for changes to come to First Amendment doctrine (and other constitutional rights). Even beyond the website creator’s novel arguments in 303 Creative, we have already seen Bruen’s influence in the First Amendment context.
For example, in Netchoice, L.L.C. v. Paxton, a First Amendment challenge over Texas’ social media non-discrimination law, the Fifth Circuit chastised the plaintiff for failing to begin its arguments by reference to “the original public meaning of the Constitution’s text.”
Elsewhere, the Sixth Circuit imported Bruen’s discussion about historical analogs in the context of a case about the First Amendment right of access.
Other appellate court judges have begrudgingly expressed doubt about the First Amendment influence of Bruen. Eleventh Circuit Judge Kevin Newsom, who has called the text and history approach to the First Amendment “terrific,” nevertheless criticized the Court’s equivalency between the First and Second Amendments, explaining succinctly, “that’s not the way it seems to work.”
Still, district courts have begun to bite. In a case about a wedding photographer opposed to a public accommodation law requiring her to serve gay and straight couples equally, one district court judge in Kentucky observed, “Bruen eschews tiers of scrutiny in favor of attention to ‘text and history,’” which leaves one “wonder[ing] why the same approach wouldn’t apply to the First Amendment.”
Another district court judge in Florida explained of interpreting the First Amendment after Bruen, “We . . . apply a constitutional baseline: ‘the freedom of speech’ as it was understood at the Founding.” Citing Bruen, it added, “that’s how constitutional exegesis works more generally.”
Whether the Court’s conservative wing will make good on their dramatic reimagining of the First Amendment in 303 Creative remains to be seen. At least two justices — Thomas and Gorsuch — have suggested in other First Amendment cases that history should be the guide. The only question now is whether three other justices will agree.