Sotomayor, J., dissenting
prohibition on posting a notice that they will deny goods or services based on sexual orientation.
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This Court has long held that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U. S. 552, 567 (2011). “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 62 (2006) (FAIR). This principle explains “why an ordinance against outdoor fires might forbid burning a flag and why antitrust laws can prohibit agreements in restraint of trade.” Sorrell, 564 U. S., at 567 (citation and internal quotation marks omitted).
Consider United States v. O’Brien, 391 U. S. 367 (1968). In that case, the Court upheld the application of a law against the destruction of draft cards to a defendant who had burned his draft card to protest the Vietnam War. The protester’s conduct was indisputably expressive. Indeed, it was political expression, which lies at the heart of the First Amendment. Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis, J., concurring). Yet the O’Brien Court focused on whether the Government’s interest in regulating the conduct was to burden expression. Because it was not, the regulation was subject to lesser constitutional scrutiny. 391 U. S., at 376–377, 381–382; Clark v. Community for Creative Non-Violence, 468 U. S. 288, 294, 299 (1984). The O’Brien standard is satisfied if a regulation is unrelated to the suppression of expression and “ ‘promotes a substantial government interest that would be achieved less effectively
