From Gods to Google
abstract. The First Amendment has become a significant barrier to sensible technology regulation. The conventional explanation for this is the Court’s deregulatory turn in free-speech law. But the Lochnerization story is incomplete. The Court’s profound solicitude for religious speakers plays a central role in the current digital-free-expression landscape. By protecting the speech of certain religious dissidents, the Court has created a set of constitutional entitlements that logically extend to technology firms. Along the way, the Court has eroded its ability to apply the First Amendment sensibly to novel technologies.
This Feature draws the doctrinal through line from gods to Google. We first sketch the basic contours of today’s technology regulation and explain why it is vulnerable to First Amendment challenge. We then give an overview of free-speech case law that develops what we call the oppressed-speaker paradigm. The Roberts Court has been motivated not just by free-market zeal but also by the trope of a persecuted religious minority standing fast in the face of a domineering and majoritarian regulator.
We pay special attention to 303 Creative LLC v. Elenis, identifying several doctrinal defects likely to have an impact on technology regulation. Technology firms have wasted no time in relying on 303 Creative to challenge a variety of new laws—most notably in last Term’s Moody v. NetChoice, LLC, which involved free-speech challenges to the regulation of internet platforms. The Court in Moody, however, sidestepped or ignored the most serious implications of 303 Creative.
It may be tempting to think the Court could reconcile the two cases by distinguishing religious speakers from platforms. But doing so would impermissibly enshrine viewpoint and speaker discrimination into free-speech law. The Court thus confronts a conundrum of its own making: either (1) apply the principles developed for religious speakers to new technologies and expose a wide range of technology policy tools to constitutional attack, or (2) create special rules for religious speakers, which would violate the Court’s own notions about viewpoint and speaker neutrality. A principled resolution of this conflict cannot be that free-speech law affords special protection for religious speakers. The Roberts Court must find legitimate and coherent limiting principles for the First Amendment landmines it has laid.
authors. Rebecca Aviel is Professor of Law and Maxine Kurtz Faculty Research Scholar, University of Denver Sturm College of Law. Margot E. Kaminski is Professor of Law, University of Colorado Law School; Faculty Director, Privacy Initiative at Silicon Flatirons Center. Toni M. Massaro is Regents Professor of Law Emerita and Dean and Milton O. Riepe Chair in Constitutional Law Emerita, University of Arizona James E. Rogers College of Law. Andrew Keane Woods is Milton O. Riepe Professor of Law and Distinguished Legal Scholar, University of Arizona James E. Rogers College of Law. We thank the Yale Law Journal editors for their care and rigor throughout the editorial process.
Introduction
Digital technologies raise a host of public-policy puzzles. The use of artificial intelligence (AI) in both the private and public sectors raises concerns about the fairness, transparency, and accountability of these systems.1 As social-media platforms have become our “modern public square,”2 critics have decried platforms’ content-moderation practices as censorship.3 The explosion of “surveillance capitalism” imperils citizens’ privacy.4 Law-enforcement officers seek access to encrypted devices and services,5 while the U.S. government perceives a national-security risk in the possibility that foreign-owned technology companies will export users’ sensitive personal data.6 And then there are the children.7 In 2023, the U.S. Surgeon General issued an advisory detailing “ample indicators” that social media poses “a profound risk of harm to the mental health and well-being of children and adolescents.”8 As one doctor put it, “The internet is a giant hypodermic, and the content, including social media like Meta, are the psychoactive drugs.”9
Across these different domains, there is both bipartisan agreement that regulation should be enacted and a rough consensus about the relevant set of policy tools available to do so. The problem is that these tools are vulnerable to powerful First Amendment challenges. Because digital technologies involve “images, words, symbols, and other modes of expression,”10 nearly every regulation of digital technologies could be characterized under current law as a restraint on speech.11 This is partly a result of what scholars call the Lochnerization of the First Amendment, driven by the Supreme Court’s free-market skepticism of legislative policymaking.12 But Lochnerization is only part of the picture.
In this Feature, we show that the Court’s profound solicitude for religious speakers is a central but underappreciated part of the current digital-free-expression landscape. By protecting the speech of certain religious dissidents, the Court has created a set of constitutional entitlements that logically extend from gods to Google. Along the way, the Court has eroded its ability to apply the First Amendment sensibly to novel technologies. The Court cannot avoid this problem by simply distinguishing religious speakers from technology speakers. Doing so would violate a core free-speech principle prohibiting viewpoint discrimination; indeed, this Court has admonished the political branches that they are “prohibited” from enacting “restrictions distinguishing among different speakers, allowing speech by some but not others.”13 The Court thus confronts a conundrum of its own making: either (1) apply the principles developed for religious speakers to new technologies, rendering a wide range of technology policy tools vulnerable to constitutional attack, or (2) create special rules for religious speakers, which would violate the Court’s own notions about viewpoint and speaker neutrality.
Two recent Supreme Court cases illustrate the dilemma. In 303 Creative LLC v. Elenis, the Court excused a Christian website designer from compliance with a state public-accommodations law. The Court held that requiring the website designer to create a wedding website for a same-sex couple compelled “pure speech” in service of government ideology14—as if the government were forcing schoolchildren to pledge allegiance to the flag, like in West Virginia Board of Education v. Barnette.15 The Court did not consider whether the state could demonstrate compelling reasons for its nondiscrimination law. It simply announced a categorical prohibition against government compulsion of “pure speech.”16 And because 303 Creative was decided on free-speech rather than free-exercise grounds, its reach logically cannot be limited to religious speakers.17
Recognizing this, technology companies immediately seized upon the case to challenge state regulation of internet platforms in Moody v. NetChoice, LLC.18 Moody involved two state laws that restrict platforms’ ability to control how third-party content is presented to other users—including decisions to filter, prioritize, label, and remove posts—and require platforms to provide individualized explanations of content-moderation decisions.19 Paul Clement, representing the platforms, argued that these state laws sought to compel speech in exactly the way that 303 Creative flatly foreclosed. Clement’s opening statement revealed how central 303 Creative was to the platforms’ argument: “[Y]ou cannot have the forced dissemination of third-party speech . . . . And Reno [v. ACLU] and 303 Creative make clear those principles are fully applicable on the Internet.”20 If the Court stands behind 303 Creative and holds fast to its views about speaker neutrality, then the protections it has developed for religious speakers must extend to technology companies.
The Becket Fund for Religious Liberty, in an amicus brief supporting neither party, offered the Court a starkly different path.21 It urged the Court to cabin its religious-speaker cases by explicitly granting special protection to religious speakers only.22 But carving out special rules for religious speakers would inject a new and pernicious dynamic into free-speech doctrine, casting doubt on decades of case law emphasizing the importance of speaker and viewpoint neutrality.23 It is the Free Exercise Clause, with its textual commitment to the protection of religion, that offers special consideration to faith-based reasons for acting or refusing to act.24 In the speech realm, the government must be neutral toward a range of ideologies and viewpoints, including attitudes about religion.25 It can neither disfavor nor favor religious speech. The First Amendment’s nearly absolute prohibition on viewpoint discrimination means that putting religious speech on a higher plane than nonreligious speech (or antireligious speech) is no more acceptable than favoring liberal speech over conservative speech.26
Given the express arguments made to the Court in Moody, the Justices could not have missed the question: are technology companies protected by the absolutist principles embraced in 303 Creative, or is that approach reserved for speakers with religious convictions? Instead of answering the question, the Moody Court blinked. All nine Justices agreed to vacate and remand the cases, holding that the courts of appeals below had failed to apply the correct standard for facial challenges under the First Amendment.27 They flatly ignored the technology companies’ arguments that 303 Creative’s firm assertion that website design is “pure speech” was either controlling in the platform cases or somehow distinguishable on other grounds, including on the ground that the website designer in 303 Creative was a religious speaker.28 Litigants and lower courts are now left with the difficult task of squaring Moody with 303 Creative and earlier religious-speaker cases.29 All remain viable cases in the Court’s new doctrinal thicket and imperil sensible technology regulation as much as the case law driven by Lochnerian impulses.
The significant implications of the religious-speaker case law for modern technology law have not been previously identified. This likely is because the topics of religious speakers and technology regulation have long been viewed as distinct rather than potentially related phenomena. Although technology-law scholars and policymakers are acutely aware of the deregulatory consequences of recent First Amendment cases in general,30and some commentators even anticipate application of First Amendment protections to nonhuman technology speakers,31 none has examined the significant role that religious-speaker protection per se has played in expanding this toolkit. Meanwhile, First Amendment scholars have criticized the Court’s religious-speaker cases, but largely on their own terms.32 No scholar has thoroughly explored how the cases also may jeopardize regulatory responses to the harms of digital technology. We bridge these gaps here.
This Feature proceeds in four Parts. Part I sketches, in broad strokes, what current technology regulation looks like and why. This includes platform regulation, data privacy laws, national-security laws, regulations to protect children, and laws governing AI. This summary sets the stage for our discussion of why the Court’s religious-speaker cases are particularly dangerous for much of contemporary technology law.
Part II provides an overview of the First Amendment cases leading up to 303 Creative that illustrate what we call the oppressed-speaker paradigm. The Roberts Court is motivated by the trope of a persecuted religious minority standing fast in the face of a domineering and ideologically majoritarian regulator. It often invokes Barnette, which held that Jehovah’s Witness schoolchildren have a free-speech right not to recite the Pledge of Allegiance or salute the flag upon pain of expulsion from public school (and criminal sanctions for their parents).33 Yet the compelling Barnette narrative of conscience and courage often is ill-suited for other contexts and speakers, including ones that involve complex regulation of emerging technologies. After all, these speakers generally are not individuals, not conscience-motivated, not relatively powerless, and not subject to comparable majoritarian pressures expressed through coercive government power. Indeed, in some cases, the government regulator may be acting to defend other, minoritized speakers from censorship and undue coercion by the private technology speakers.
Part III turns to 303 Creative. The majority opinion makes five problematic moves: (1) applying free-speech principles rather than free-exercise principles to Colorado’s public-accommodations law; (2) treating the design of wedding websites as “pure speech” rather than a combination of conduct and speech; (3) characterizing the website as the speech of the vendor rather than the speech of the customer; (4) assuming the antidiscrimination mandate was unduly coercive without actually assessing the magnitude of the compliance burden; and (5) concluding that the antidiscrimination mandate was categorically unconstitutional without examining the state’s justifications. For each doctrinal move, we explain the potential threat to sensible technology policy.
Finally, in Part IV, we parse Moody and its implications. On the one hand, the Court’s application of the First Amendment to technology platforms was subtler and more sophisticated than its treatment of website design in 303 Creative. This is a welcome development. But Moody’s refusal to acknowledge, much less explain, how the two cases interact creates a doctrinal mess for lower courts and regulators. Squaring the more nuanced approach on display in Moody with the “pure speech” absolutism of 303 Creative will not be an easy task.
We argue that the Court must confront both the doctrinal excesses and the internal conundrum within its recent cases. We maintain that free-speech law normatively and analytically should not grant special protection to religious speakers. The proper doctrinal through line must be from gods to Google, and back. If the Court is unwilling to embrace the “pure speech” construct when deployed by technology companies, it must reevaluate its overprotective treatment of religious speakers. Or the Court must clearly provide guidelines to determine how the doctrine might take into account context-specific distinctions that do not depend implicitly on a speaker’s religious views. It must offer, in other words, First Amendment limiting principles derived from the role that speech ought to play in our democracy. This will require far more care and nuance than evidenced by current First Amendment doctrine.