If you were to do an informal poll of conventional progressive opinion—asking where is the public to be found, in acts of speech or in the marketplace—I suspect most liberals, and probably not a few leftists, would say: in acts of speech.

Since the eighteenth century, speech has been firmly associated with the public sphere or the public square. “The people’s darling privilege”: that’s how freedom of speech was understood, as the instrument of the people, assembled in their sovereign and public capacity. There’s a long history behind the notion, stretching back to Aristotle, whose justification for the claim that man is a political animal rests upon the fact that human beings, unlike other animals, have the capacity for speech. In his essay on liars, Montaigne wrote that human beings “have relations with one another only by speech.” In the twentieth century, Hannah Arendt argued that our politicalness was to be found in our capacity for word and deed. Speech and politics, speech and the public, speech and the people: Long before constitutional lawyers thought of rights as primarily individual claims, they thought of freedom of speech as something that belonged to, and required, a public square. Freedom of speech was less something that belonged to the individual than it was a property of good public life.

Markets, on the other hand, have a more checkered status in the contemporary progressive imagination. Returning, again, to our hypothetical poll of liberal and left opinion, I suspect many progressives associate the market, first and foremost, with private acts of possession: the ownership of property, ownership of the means of production, personal possession of money, and so forth. Though all of these elements—property, money, production—involve the state, indeed are inconceivable without some public entity of acknowledgment and enforcement, they are not thought to be public, of the people, in the same way as speech. In fact, we often think of the market as involving individuals, and even when we think of social classes or groups in the market, the idea is that they are pursuing their own particular, non-public, interests. From the point of view of some parts of the left, that is one of the problems of the market: its privatizing or individualizing effect.

Which leads me to 303 Creative LLC v. Elenis, yesterday’s Supreme Court case that pitted the First Amendment rights of a graphic designer against the anti-discrimination claims of LGBTQ individuals. Contrary to popular myth, the rights at stake here do not involve religion. Lorie Smith, the designer looking to go into the website business for weddings, was claiming that her free speech rights were threatened by Colorado’s anti-discrimination law, which prohibits public accommodations, including public-facing private businesses, from denying goods and services to individuals on the basis of those individuals’ sexual orientation (and race, creed, religion, etc.)

How was Smith’s freedom of speech at stake, you ask? Smith claimed that because she doesn’t believe in gay marriage, the state’s requirement forces her, compels her, to utter words that she does not believe. A website is a combination of text and graphics. It would be, in this case, custom-designed for the individual couple in question. To design a website celebrating a gay couple’s union would be the equivalent of forcing a Muslim filmmaker—the Court kept returning to this analogy—to make a movie with a Zionist viewpoint. (I’m just the messenger here; not endorsing the claim. Or the assumption about Muslims behind the analogy.)

What’s interesting about the case is how it reverses the left’s usual assumptions about speech and markets. If you read Sonia Sotomayor’s dissent, which was joined by the Court’s liberals, it’s clear that while she does not deny that Smith’s website design involves speech, that it is expressive and communicative, she nevertheless insists upon putting Smith’s actions in the context of the market. Not because Smith would make money from her web design but because, by virtue of entering the market, she has opened her business—including her business’s expressive activities—to the public. By entering the market, she has to accept the rules of the market, one of which is to provide access to any and all members of the public. One might say that the market is a kind of public.

Sotomayor traces this principle back to a 1701 case in English common law, but it also animates much of the Enlightenment’s thinking about commerce and markets. Adam Smith, like David Hume and many other theorists of commercial society, thought that an increasingly widened commerce would draw us all out of our local and parochial attachments, connecting us to ever broader and more distant parts of the world. One can easily find the trace of his and other eighteenth-century thinkers’ positions in the Interstate Commerce Clause of the Constitution and in some of the great civil rights cases of the twentieth century, which involve institutions like inns and hotels and restaurants—not just places of commerce and the market, but places of commerce that are connected with travel, with encounters between strangers, with the growing relationships between peoples from distant places and lands. The market connects us, in this tradition, so if we enter the market, we have to connect.

Now we come to Neil Gorsuch, who wrote the opinion for the Court’s conservative majority. For Gorsuch, and for his fellow conservatives, the market barely makes an appearance in this case. Instead, he and the conservatives take the side of Smith, not Adam Smith, but Lorie Smith, the anti-gay marriage website designer. What is at stake are not her rights in the market, which, as Sotomayor relentlessly observers, would open, even force, Smith the designer, into the hands of the public. Instead, says Gorsuch, it is her rights of speech, which Gorsuch and the conservatives see as belonging to the sphere of conscience, of Smith’s inner beliefs. In the same way that the state cannot force me to take an oath to avow a belief I do not hold, to utter words that I do not think, so should the state not force Smith’s business to avow beliefs that she does not hold. That she has entered the market to express herself is neither here nor there, to Gorsuch. Her beliefs, her words, are hers. She may be in the market, but that doesn’t mean she has to connect. Her speech protects her from connecting. It protects her from the public.

So there we have it. Obviously there are all kinds of politics and interests going on here, which have little to do with the formal statements that are being articulated in these warring Court opinions. But the statements matter, and should get us to think some more about our own assumptions regarding where the public lies: in our speech acts or in our market life.

Additionally, there’s an assumption, particularly on the left, that what the right has pursued, through neoliberalism, is the relentlessly economistic organization of society. Everything should be subjected to the rule of the market. Yet as 303 Creative LLC v. Elenis demonstrates, that’s not quite true. It’s not simply that the right wishes to uphold the right to discriminate against LGBTQ people, though that is true. It’s also that the neoliberal right does its work not simply by economizing the public sphere but also by refusing to see, sometimes, the economic dimensions of the public sphere, preferring to see those dimensions as speech acts, expressive, communicative rather than commercial. Conversely, the left, sometimes, can do its best work not by denying the economic dimensions of the public sphere, not by relegating market relations to a second-order sphere of private property and possession, but by seeing the public dimension of market relations and insisting on their connective tissue, the ways in which the market brings us together and creates a public, however imperfect and deformed.

If you want to read more about these issues, take a look at my article on Adam Smith and chapter six of my book on Clarence Thomas. I’ll also be pursuing these issues in my next book, King Capital.