For those interested in free speech and tech policy, this could be the most significant Supreme Court term in a generation. An earlier blog post discussed Gonzalez v. Google, which seeks to hold YouTube liable for ISIS recruiting efforts on the platform. And the justices are deciding whether to review Moody v. NetChoice, the Eleventh Circuit decision invalidating Florida’s online censorship statute, which is at odds with a Fifth Circuit ruling upholding a similar Texas law. This circuit split regarding the scope of social media companies’ First Amendment rights seems likely to capture the high court’s attention.

Another upcoming sleeper case could also affect those decisions. 303 Creative v. Elenis involves a web designer who refuses to create websites for same-sex weddings. As the latest battleground in the culture wars, the case has been closely watched by both religious and LGBT rights groups. A ruling in plaintiff Lorie Smith’s favor would be a victory for conservatives but could hinder their ongoing efforts to regulate social media platforms.

In many ways, this case is a replay of the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission litigation. Smith, a graphic design artist, seeks to create wedding websites. But because of her religious beliefs, she does not want to design websites for same-sex marriages. Her policy likely violates Colorado’s public accommodations law, which prohibits businesses open to the public from discriminating on the basis of sexual orientation. Smith is willing to provide non-wedding-related services to LGBT customers and has volunteered to direct those seeking same-sex wedding websites to other web designers. But she argues that if Colorado law requires her to create websites promoting same-sex marriages, this would violate her First Amendment rights of freedom of speech and free exercise of religion. The Court granted certiorari only on the speech question, thus embracing the question it ultimately ducked in Masterpiece Cakeshop.

But for tech scholars, there’s a key difference between Masterpiece Cakeshop and the present case: Smith is designing websites, not cakes. So the Court must decide whether a company that prepares and hosts online content is engaged in First Amendment–protected speech, even when the substance of that content is dictated by the company’s customers. The Tenth Circuit correctly concluded yes: Smith uses her creative talents to create websites that express approval and celebration of specific marriages. Like the newspaper in Miami Herald v. Tornillo or the parade organizer in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, these websites constitute her own speech even if the underlying messages come from third parties. Thus, the Tenth Circuit found that Colorado’s law infringed on Smith’s First Amendment rights by telling her what she must say.

Ultimately, however, the Tenth Circuit excused this infringement because the Colorado law served a compelling interest—namely, combating discrimination against marginalized groups—and is narrowly tailored to ensure “equal access to publicly available goods and services.” But the dissent has the better argument here. To be narrowly tailored, a statute must abridge no more speech than necessary to achieve its purpose. If the purpose is to assure that same-sex couples can purchase wedding websites, Colorado need not infringe on Smith’s speech as long as other vendors can meet that demand. The Tenth Circuit sidestepped this argument by finding that Smith’s artistic services are “unique,” and therefore, other vendors are not adequate substitutes.

But this market-of-one analysis seems specious. In antitrust cases, markets are defined by the availability of substitutes; if Smith competes with other wedding website designers for customers, then her company is part of a larger market, not a monopoly. And if those competitors will serve same-sex couples, then Colorado’s infringement on Smith’s speech is unnecessary to assure same-sex couples can access that market.

Cultural conservatives are rooting for Smith. But her victory could cast a significant shadow on conservative efforts in Florida and Texas to bar viewpoint discrimination by social media platforms. If Smith’s websites constitute First Amendment–protected activity, that supports the argument that Facebook and Twitter are too. While the two cases are not identical, both Smith and Facebook figure out how best to display and promote customers’ messages in graphical format online and host that content for others to see. Like Smith and her competitors, social media companies compete for user time and attention, in part by choosing which users’ messages they want associated with their companies and which they do not. The difference is one of degree rather than kind.

The Court has not yet decided whether to resolve the split between the Florida and Texas decisions. But if it does, Gonzalez may not be the only case this term that will affect its decision. If Colorado’s law compels speech in violation of Smith’s First Amendment rights, it’s hard to argue that Florida and Texas do not do the same to Facebook and Twitter.

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