Page:303 Creative LLC v. Elenis.pdf/62

30 did in FAIR. Instead, the proper focus is on the character of state action and its relationship to expression. Because Colorado seeks to apply CADA only to the refusal to provide same-sex couples the full and equal enjoyment of the company’s publicly available services, so that the company’s speech “is only ‘compelled’ if, and to the extent,” the company chooses to offer “such speech” to the public, any burden on speech is “plainly incidental” to a content-neutral regulation of conduct. Ibid.

The majority attempts to distinguish this clear holding of FAIR by suggesting that the compelled speech in FAIR was “incidental” because it was “logistical” (e.g., “The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.”). (internal quotation marks omitted). This attempt fails twice over. First, the law schools in FAIR alleged that the Solomon Amendment required them to create and disseminate speech propagating the military’s message, which they deeply objected to, and to include military speakers in on- and off-campus forums (if the schools provided equally favorable services to other recruiters). 547 U. S., at 60–61; App. 27 and Brief for Respondents 5–8 in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., O. T. 2005, No. 04–1152. The majority simply skips over the Court’s key reasoning for why any speech compulsion was nevertheless “incidental” to the Amendment’s regulation of conduct: It would occur only “if, and to the extent,” the regulated entity provided “such speech” to others. FAIR, 547 U. S., at 62. Likewise in O’Brien, the reason the burden on O’Brien’s expression was incidental was not because his message was factual or uncontroversial. But cf. . O’Brien burned his draft card to send a political message, and the burden on his expression was substantial. Still, the burden was “incidental” because it was ancillary to a regulation that did not aim at expression. 391 U. S., at 377.