‘From Gods to Google’: DU Law Professor Sounds Alarm Over First Amendment and Technology Regulation

In 2016, Lorie Smith, a Colorado website designer, sued Aubrey Elenis, the director of the Colorado Civil Rights Division. The lawsuit challenged the state’s anti-discrimination law, arguing that it would force her to create speech—in this case, wedding websites—for same-sex couples, a violation of her religious beliefs.

It was an unusual case, explains Sturm College of Law professor Rebecca Aviel, because Smith hadn’t even started her business yet. “There was no factual development. No one had come and then been turned away."

Nonetheless, in 2023, the U.S. Supreme Court ruled 6-3 in Smith’s favor, citing freedom of speech rather than freedom of religion.

According to Aviel, the 303 Creative LLC v. Elenis decision, because it ultimately didn’t include a religious component, can be broadly applied to any kind of company, including a technology behemoth like Google.

Aviel, who specializes in family law, legal ethics, and constitutional law, unpacks the 303 Creative LLC decision and its impact on technology regulation in her latest paper, “From Gods to Google,” published in the Yale Law Journal. Digital technologies involve images, words and other modes of expression, meaning nearly every regulation could be seen as a restraint on speech. 

“We wanted to sound the alarm bell about 303 Creative to show that, in addition to being troubling in its own context—this perceived clash between LGBTQ equality and freedom of religion—it has this potential to jump ship into this other area of technology regulation,” Aviel says. 

And it already has. In June 2024, the Supreme Court was asked to hear Moody v. NetChoice and NetChoice v. Paxton. These cases, brought by NetChoice, a tech lobbying group whose members include Google, Meta, and TikTok, challenge laws in Florida and Texas that restrict the ability of social media platforms to moderate content.

NetChoice argued these laws infringed upon the platforms’ freedom of speech. They argued that social media platforms, which are private companies, should have the editorial discretion to decide which content they host, like any other publisher. And as Aviel predicted, NetChoice invoked 303 Creative in its lawsuit.

But the court was less sympathetic to the social media companies and didn’t accept the First Amendment arguments as broadly. They did, however, reiterate that social media platforms have free speech rights and that compiling other people’s posts is a form of expressive activity akin to writing in a newspaper. Ultimately, these cases were sent back to the lower courts to be litigated again with the high court’s assessments in mind.

“One of the most pressing questions in this space moving forward is whether the large and powerful platforms should continue to be treated as private speakers,” she says. “There are lots of open questions on what kind of regulation and how much can be applied to these companies.” 

While Aviel views the court’s retreat from 303 Creative as a small victory, she remains worried about an emerging faction on the court seeking to provide special exemptions for religious speakers that are not provided to non-religious speakers. She’s also concerned that the court didn’t clarify how the NetChoice and 303 Creative cases fit together, leaving the lower courts without guidance as technology increasingly influences our daily lives.

“We want to urge the court to look around the corner to think a few steps ahead. Things are changing very quickly,” Aviel says. “We need to be cautious rather than paint with sweeping brushstrokes.”