The Hollow Promise of One of the Supreme Court’s Worst 2023 Decisions Has Just Been Exposed (2024)

Legal clashes between free speech and equality are on the rise, producing judicial decisions that will shape our society for decades. A year ago, the Supreme Court used the principle of freedom of speech protected under the First Amendment to significantly limit the reach of antidiscrimination laws. In 303 Creative v. Elenis, a conservative supermajority allowed a web-designing business to refuse to serve same-sex couples seeking wedding websites. Raining on last year’s Pride parades, it broadly stated: “When a state public accommodations law and the Constitution collide, there can be no question which must prevail.”

Responses to the unprecedented decision followed ideological lines. Conservatives celebrated the decision and immediately started to try to expand its impact beyond web designing, outside of the wedding industry, and to more than same-sex couples. Liberals, by contrast, attempted to control the damage by claiming the decision should be read narrowly and have minimal effect on the general application of antidiscrimination laws to market activities.

Last week, however, a new decision of the U.S. Court of Appeals for the 11^th Circuit, American Alliance for Equal Rights v. Fearless Fund Management, broke this pattern of responses. A conservative majority of two Trump appointees seemingly crossed the ideological conventional lines, showing far less zeal to follow 303 Creative. This reluctance exposes the emptiness of the Supreme Court’s declaration only a year ago that “all persons are free to think and speak as they wish,” while a “commitment to speech for only some messages and some persons is no commitment at all” (emphasis by Justice Neil Gorsuch).

In a 2–1 decision, the 11^th Circuit offered a shockingly narrow read of 303 Creative. It disallowed the Fearless Fund, a venture capital fund, to limit applications to its competitive grant program to only Black businesswomen. Despite the fund’s statement that the program expresses the need to “bridge the gap in venture capital funding for women of color,” and therefore should enjoy the promise made in 303 Creative to protect all expressive projects, the court ordered a preliminary injunction against the fund. It reasoned that while the First Amendment “broadly prohibits the government from ‘abridging’ a private party’s ‘freedom of speech,’ ” it “does not protect the very act of discriminating on the basis of race.” Accepting the fund’s free speech claim, the court forewarned—much like Justice Sonia Sotomayor cautioned in 303 Creative—“risks sowing the seeds of antidiscrimination law’s demise.”

Does this warning reflect more carefulness regarding speech rights on the conservative side, which can assist in carefully applying 303 Creative in the future? Unfortunately, the answer seems to depend on the content of the message that seeks free speech protection. While the 11^th Circuit attempted unconvincingly to distinguish 303 Creative, the only significant difference that could explain unleashing the power of free speech in 303 Creative but restraining it in Fearless Fund is the ideological profile of the reviewed speech.

When the speech leans “red,” such as in 303 Creative’s effort to express opposition to marriage equality, it has the power to legitimize a business behavior that discriminates on the basis of sexual orientation even when such discrimination is explicitly forbidden under antidiscrimination law. By contrast, when the speech leans “blue,” such as in the Fearless Fund’s effort to empower Black businesswomen, it loses its superiority, and antidiscrimination law is used to serve the interests of white men and others the fund did not wish to support. Another way to put it is to highlight the ideological affiliation of the business alleging speech rights: red wins, blue loses.

Such ideologically charged application of the freedom of speech to market activities is indefensible. It also represents a risky judicial intervention in the so-called market for ideas.

Instead, any impartial effort to balance speech rights with a commitment to equality should have yielded the opposite results in both 303 Creative and Fearless Fund. The leading reason is rooted in the unifying rationale of our various antidiscrimination laws, their history, and the tradition of their application in the decades preceding 303 Creative. These were first enacted under the Reconstruction Amendments to respond to blatant discrimination against freed Black people whose survival and integration into society was understood to hinge on their ability to make and enforce contracts. They continued to be necessary to cope with the brutal reality of a segregated marketplace, further teaching us the importance of a market open for all, including additional disenfranchised groups.

At their core, antidiscrimination laws aim to minimize the humiliation suffered by those who too often are found unworthy of engaging in the same market activities that are readily available to most others. Therefore, not only liberal judges but also conservative ones, with their commitment to history, tradition, and originalist interpretive approach, should have prioritized antidiscrimination laws whenever speech is used to undermine the dignity of a protected group. Conversely, speech should be given priority when it focuses on uplifting those who have long been mistreated (like Black women) and does not risk the dignity of others who regularly face no difficulty engaging in market activities (like white men).

While it is too late to undo 303 Creative, revealing its selective application should help prevent decisions like Fearless Fund from hurting minorities and becoming the law of the land. It is indeed a goal worth fighting for if the Supreme Court decides to review the case.