Opinion of the Court
When it finally gets around to discussing these controlling precedents, the dissent offers a wholly unpersuasive attempt to distinguish them. The First Amendment protections furnished in Barnette, Hurley, and Dale, the dissent declares, were limited to schoolchildren and “nonprofit[s],” and it is “dispiriting” to think they might also apply to Ms. Smith’s “commercial” activity. Post, at 32–35. But our precedents endorse nothing like the limits the dissent would project on them. Instead, as we have seen, the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers). See supra, at 16–17. If anything is truly dispiriting here, it is the dissent’s failure to take seriously this Court’s enduring commitment to protecting the speech rights of all comers, no matter how controversial—or even repugnant—many may find the message at hand.
Finally, the dissent comes out and says what it really means: Once Ms. Smith offers some speech, Colorado “would require [her] to create and sell speech, notwithstanding [her] sincere objection to doing so”—and the dissent would force her to comply with that demand. Post, at 29–30. Even as it does so, however, the dissent refuses to acknowledge where its reasoning leads. In a world like that, as Chief Judge Tymkovich highlighted, governments could force “an unwilling Muslim movie director to make a
The dissent notes that our case law has not sustained every First Amendment objection to an antidiscrimination rule, as with a law firm that sought to exclude women from partnership. Post, at 19–21 (citing Hishon v. King & Spalding, 467 U. S. 69 (1984); Roberts v. United States Jaycees, 468 U. S. 609 (1984)). But the dissent disregards Dale’s holding that context matters and that very different considerations come into play when a law is used to force individuals to toe the government’s preferred line when speaking (or associating to express themselves) on matters of significance. Boy Scouts of America v. Dale, 530 U. S. 640, 648–653 (2000).
