Hurley v. Irish-American Gay, Lesbian Bisexual Group

4 Analyses of this case by attorneys

  1. 303 Creative Ruling Sets and Reaffirms Key Precedents for Online Service Providers

    Davis Wright Tremaine LLPJuly 19, 2023

    et" as opposed to "using pen and paper"). Reno's holding was significant because it rejected contentions that the internet's technical characteristics warranted more extensive regulation—and diminished First Amendment protection—more akin to cable networks or broadcast TV and radio than print media like books or newspapers. Contemporary critics have urged courts to revisit this portion of Reno, but the Court's citation and application of Reno in 303 Creative suggests the Court will not soon reverse this rule.Protections for Editing Content Provided by Others. The Court affirmed the principle that the First Amendment protects intermediaries who provide a platform for and edit others' speech. See Slip Op. at 10. Specifically, the decision recognized that acting "to vet" third-party speech—including to determine if one "is willing" to publish it—is itself speech the First Amendment protects. Id. The Court relied on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 569 (1995), a case involving a parade organizer's right to exclude expression inconsistent with its message. Quoting that decision to reject the contention that Smith could not claim protection for arranging a customer's expressive elements, the Court affirmed the exercise of discretion to "combin[e] multifarious voices" is entitled to "constitutional protection." The opinion suggests the Court has little appetite for arguments that "editorial discretion"—such as the discretion applied to moderate user-generated content—is not protected by the First Amendment. Cf. NetChoice LLC v. Paxton, 49 F.4th 439, 463-64 (5th Cir. 2022) (suggesting it is not).High Standard for Compelled Speech Regulations. In affirming that the First Amendment protects private entities from expressing messages the government compels them to publish, the Court eschewed traditional strict scrutiny analysis. Unlike the Tenth Circuit's decision that assessed whether Colorado's public accommodation law was the least restrictive

  2. U.S. Supreme Court Hears Oral Argument in Case Testing Limits of State Anti-Discrimination Law

    Jackson Lewis P.C.Michelle PhillipsDecember 13, 2022

    privileges, advantages, or accommodations to the public.”Under CADA, public accommodations are prohibited from refusing to serve an individual or group on the basis of sexual orientation. The law also bars business from announcing an intent to discriminate.Pre-Enforcement ChallengeThis case comes before the Court on a “pre-enforcement” challenge. This allows an individual or a business to challenge a law in court before being subject to its enforcement.Smith is seeking exemption from CADA that would allow her to refuse to provide web services for same-sex marriages and to announce that she will not provide web services for same-sex marriages on her website.Oral ArgumentAlthough rooted in First Amendment principles, the two sides’ arguments were diametrically opposed.Through her attorney, Kristen Waggoner of conservative religious legal organization Alliance Defending Freedom, Smith asked the Court to rely on its 1995 decision in Hurley v. Irish-American Gay, Lesbian & Bisexual Group (515 U.S. 557). (Waggoner came before the Court in a same-sex wedding-related challenge to CADA in 2018, when she represented the petitioner, a baker, in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719.)In Hurley, the Court articulated a two-part test to determine whether a private parade organizer violated Massachusetts public accommodation law when it refused to allow LGBTQ+ groups to march in the Boston St. Patrick’s Day parade. Under the Hurley test, the court first asks whether the services provided is speech. Next, the court asks whether accommodating the speech will affect the business’s message. The Court determined that compelling the parade organizers to allow LGBTQ+ groups to march would be equivalent to compelling the organizers to send a message with which they disagreed.Waggoner argued here that websites are speech and requiring Smith to provide websites for same-sex marriages would be compelling her to speak in support of same-sex marriage in violation of her

  3. SCOTUS discusses standard of review for mixed questions of law and fact

    Wisconsin State Public DefenderMarch 15, 2018

    There, we have often held that the role of appellate courts “in marking out the limits of [a] standard through the process of case-by-case adjudication” favors de novo review even when answering a mixed question primarily involves plunging into a factual record. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503 (1984); see Ornelas v. United States, 517 U.S. 690, 697 (1996) (reasonable suspicion and probable cause under the Fourth Amendment); Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 567 (1995) (expression under the First Amendment); Miller v. Fenton, 474 U.S. 104, 115–116 (1985) (voluntariness of confession under the Fourteenth Amendment’s Due Process Clause).(Slip op. at 8). For more commentary, see Scotusblog’s page on the case.

  4. According to the DC Circuit “FDA cannot get around the First Amendment by pleading incompetence…”

    Strasburger & Price, LLPMichael A. WalshAugust 31, 2012

    The Circuit Court recognized the general rule “that the speaker has the right to tailor the speech[] applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.” R.J. Reynolds, 2012 U.S. App. LEXIS 17925 at *13 (quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 573-74 (1995)). This holds true whether individuals, or corporations are being compelled to speak.