Free Speech for All—Except the Little Guy

That’s far-fetched. Common carriers such as railroads sometimes have circumscribed First Amendment rights based on market power and the public interest, but the high court has repeatedly held that even actual monopolies are generally protected by the First Amendment. As one of thousands of designers, Ms. Smith couldn’t have fewer rights.

The American Civil Liberties Union sides with Colorado, arguing that its antidiscrimination law, which applies to Ms. Smith because she offers her services to the public, trumps her right to free expression. Yet the ACLU has also vigorously defended Big Tech companies from state efforts to regulate their censorship of user-posted content.

In Texas a lawyer representing the tech companies answered in the affirmative when a judge asked if Twitter had a First Amendment right to “ban all pro-LGBT speech.” The ACLU apparently agrees, arguing in its brief that “whatever the vices or virtues of any social media firm’s particular choices,” the state may not enforce “conformity with a single government-imposed view.” In a brief in a similar Florida case, the ACLU asserts that the First Amendment “protects ‘business corporations’ and ‘ordinary people engaged in unsophisticated expression’ alike.”

The notion that Twitter and TikTok have the right to free speech while Ms. Smith is subject to state-imposed conformity is incredible. Major social-media platforms are open to the public and purport to be viewpoint-neutral, while Ms. Smith custom-creates only designs and websites consistent with her beliefs, areas of expertise and personal passion. Social-media platforms are largely a conduit for others’ unaltered speech, while Ms. Smith creates her own independent expression. And social-media platforms exercise vastly more market power than a website shop in Denver.

Yet the ACLU apparently believes that the First Amendment shields Big Tech while leaving Ms. Smith at the mercy of local officials who can compel her to speak against her faith or drive her out of business. Such an upside-down argument—siding with domineering corporations and against small-business owners—could be driven only by the ACLU’s distaste for Ms. Smith’s speech. That confirms the result the Supreme Court should reach: Ms. Smith isn’t Amtrak,

Marriott

or Twitter. She is a small-business owner who wants to speak consistent with her beliefs. Her speech, as much as Colorado bureaucrats and the ACLU may dislike it, is protected by the First Amendment.

Mr. Mills is principal at Spero Law LLC. He filed an amicus brief on behalf of newspaper and book publishers in 303 Creative.