The First Amendment has two sides. Most people know the first one: the government can't silence you. Fewer know the second: it can't make you speak, either. The Supreme Court has been clear on this for decades. It became a lot clearer in June 2023, when the Court handed down 303 Creative v. Elenis and held, 6-3, that compelled speech is unconstitutional regardless of how the government dresses it up.
Lorie Smith designs websites. She's a Christian who declined to create sites for same-sex weddings, and Colorado went after her under its public accommodations law - the same statute that had already produced Masterpiece Cakeshop a few years earlier. The Court didn't rule on Masterpiece's merits; it punted on grounds of agency hostility toward religion. In 303 Creative, there was no way to punt. The question was clean: can the government force an artist to create expressive content that conflicts with her beliefs? Justice Gorsuch, writing for the majority, said no. The First Amendment protects the right to speak. It equally protects the right not to.
That principle isn't new. Wooley v. Maynard (1977) stopped New Hampshire from forcing citizens to display "Live Free or Die" on their license plates. A Jehovah's Witness couple objected; the Court sided with them. West Virginia State Board of Education v. Barnette (1943) went further, striking down mandatory flag salutes in public schools. Justice Jackson's line from that opinion has outlasted a lot of legal writing: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."
That was 1943. The instinct to prescribe orthodoxy hasn't gone anywhere. It has gotten more sophisticated.
I've been a guest lecturer at USC Marshall School of Business for several years. The classroom is as free as any I've encountered. Nobody has ever told me what to say about financial markets, fiduciary duty, or constitutional questions, and I've said things that wouldn't pass an ideological purity test at certain other institutions. That's what a serious university looks like. The broader pattern in higher education — the social cost of expressing heterodox views, the informal pressure that doesn't rise to a formal order but functions like one — is the mechanism the First Amendment is increasingly being asked to address. Brandenburg v. Ohio (1969) made explicit statutory prohibition of speech very difficult. What replaced it was subtler and, in some environments, equally effective.
Colorado argued in 303 Creative that Smith's websites were commercial services, not expressive conduct, and that anti-discrimination law simply required her to serve all customers equally. That framing is the key move in the compelled speech playbook: reclassify expression as commerce, and the First Amendment goes away. The Court rejected it. Gorsuch's majority held that Smith's website design is plainly expressive — she makes choices about words, images, and narrative — and that forcing her to apply those skills to messaging she rejects is forcing her to speak. The government's interest in eliminating discrimination from public accommodations, however legitimate, doesn't override that.
The dissent warned the ruling could allow businesses to discriminate against customers whose service has an expressive component. That's a genuine tension. But the majority reflects something the Founders got right: the government's power to regulate commerce doesn't include the power to conscript speech. A graphic designer, a speechwriter, a photographer — these aren't conveyor belts the state can direct toward approved messages. Constitutional protection for expression doesn't dissolve when a transaction is involved.
What the 303 Creative majority did was clarify why compelled speech fails the same constitutional test as suppressed speech. Both involve the government substituting its judgment for the individuals' about what ought to be said. The Wooley couple didn't want to advertise New Hampshire's motto. The Barnette students didn't want to salute the flag. Lorie Smith doesn't want to design websites for ceremonies she considers inconsistent with her faith. The principle is the same in all three: the government's disapproval of the individual's position isn't enough. The First Amendment isn't a privilege the state grants to approved speakers. It's a limitation on the state's power to determine who speaks and what they say.
The cases that follow 303 Creative will test where the line falls between expressive services and commodity services, and between sincere objection and pretext for discrimination. Those are hard questions. The answer to all of them begins in the same place: with the individual's right to determine what her work says, not the government's right to prescribe it. Jackson was right in 1943. The Court affirmed it in 2023. The instinct to prescribe orthodoxy will require a third reminder eventually. It always does.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He writes about issues in finance, constitutional law, national security, human nature, and public policy.