Prof. Tobias Wolff writes that the First Amendment “affords no sanctuary for discriminatory conduct in the public marketplace.”
Tobias Barrington Wolff, Jefferson B. Fordham Professor of Law at the University of Pennsylvania Carey Law School, has submitted an amicus curiae in support of the respondents in 303 Creative LLC v. Elenis, currently before the U.S. Supreme Court. In the case, the Court will decide whether a web designer’s refusal to create same-sex-union websites violates public accommodation law.
From Wolff’s amicus:
This Court should reject Petitioner’s attempt to cloak its discriminatory business conduct in the mantle of free speech. The Speech Clause of the First Amendment has never been a license for businesses to discriminate in the commercial marketplace. To the contrary, an unbroken line of cases has rejected all such attempts. When a business sells goods and services in the market, it is not a street corner speaker engaging in a personal act of expression. Customers do not pay for the privilege of promoting a commercial vendor’s own message. Customers pay for goods and services chosen by them and tailored to their needs. Selling goods and services in the marketplace is commercial conduct that the State may regulate, and anti-discrimination statutes like the Colorado Anti-Discrimination Act (CADA) do not provoke any First Amendment scrutiny in that setting. This proposition holds equally true when a business sells a product or service that involves creative or artistic skill… .
Wolff writes and teaches in the fields of civil procedure and complex litigation, the conflict of laws, constitutional law, and LGBTQ+ rights. He has served as pro bono counsel in many civil rights cases seeking equal treatment under law for LGBTQ+ people.
