Supreme Court Decides Important First Amendment Case Creating Exception to Anti-Discrimination Laws for Businesses That Involve Creative Expression/Speech

Supreme Court Decides Important First Amendment Case Creating Exception to Anti-Discrimination Laws for Businesses That Involve Creative Expression/Speech

On June 30th, in 303 Creative v. Elenis, in a significant decision that will impact antidiscrimination laws around the country, the Supreme Court held that Colorado’s public accommodation law violates the First Amendment’s Free Speech Clause by compelling the speech of a business owner engaged in expressive activity.  This case was a fight between whether the creation and sale of a wedding website to the public is considered speech, which would be protected under the First Amendment, or commercial activity / conduct that incidentally implicates speech, which would not be protected.  By holding in favor of the business owner, the Court has opened the door for any business engaged in expressive activity (which in and of itself is undefined) to refuse to provide services individuals regardless of antidiscrimination laws that would otherwise protect those individuals if doing so would require the business owner to create expression with which the owner objects.

In this case, Lorie Smith designs websites for her company 303 Creative. She wants to start creating wedding websites, but she does not want to create websites that celebrate same-sex marriage due to her sincerely held religious beliefs. She also wants to publish a statement on her website that she will not create wedding websites for same-sex couples as doing so would compromise her religious beliefs.

Like most States, Colorado has a law, Colorado’s Anti-Discrimination Act’s (CADA), that prohibits public accommodations from refusing to provide services based on several protected characteristics, including sexual orientation. CADA’s “communication clause” prevents public accommodations from communicating that someone’s patronage is unwelcome because of sexual orientation.

Smith has yet to begin creating wedding websites because she claims doing so would force her to convey a message with which she disagrees.  Instead, she sued the State in a pre-enforcement challenge, seeking to enjoin the State from enforcing CADA against her.

In a 6-3 decision authored by Justice Gorsuch, the Supreme Court held that a State cannot “use its public accommodations statute to deny speakers the right “to choose the content of [their] own message[s].’”  In other words, insofar as CADA would require Smith to create a wedding website that celebrates same sex marriage, it violates the First Amendment by compelling Smith to convey a message with which she disagrees.

The majority relies on bedrock First Amendment principles to support its decision.  For example, the majority begins with the reminder that “[i]f there is any fixed star in our constitutional constellation, it is the principle that the government may not interfere with an uninhibited marketplace of ideas.”  (internal citations omitted).  And on this front, the majority underscores that our Nation’s First Amendment values (and the Court’s precedents) protect all speakers, including those “whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive.”

To support its holding, the Court relies on several First Amendment precedents.  In West Virginia Bd. of Ed. v. Barnette, the Court concluded the State violated the First Amendment by forcing students to salute the flag on pains of expulsion and fines or jail for their parents.  Similarly, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the Court concluded that the State’s public accommodation law could not be used to compel private parade organizers to include LGBT individuals in their parade as doing so would violate the parade organizer’s constitutionally protected speech rights.  And in Boy Scouts America v. Dale, the Court held that forcing the Boy Scouts to include a gay scoutmaster would “interfere with [its] choice not to propound a point of view contrary to its beliefs.”

Here, the majority finds Smith was engaged in “pure speech,” not speech incidental to conduct as the dissent argues.  And the majority concludes that the principles from the above cases dictate that Colorado cannot compel Smith’s speech by forcing her to create same-sex wedding websites.  As the Court put it, the State demanded a choice from Smith that represented an “impermissible abridgement of the First Amendment’s right to speak freely.”  Namely, “[i]f she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs.”

The majority notes the “vital role public accommodations laws play in realizing the civil rights of all Americans” and that eliminating discrimination in places of public accommodation is a compelling state interest.  And the Court notes that States may continue to protect individuals as they seek goods and services in the public market.  The Court also explains that its holding will not apply to “a vast array of businesses.”  But, the Court warns, “public accommodations statutes can sweep too broadly when deployed to compel speech.”  The Court’s holding is thus limited to those businesses that create expression / speech.

The Court rejected Colorado’s argument that the case merely implicates conduct – i.e., “the sale of an ordinary commercial product,” and any burden on Smith’s speech is purely incidental.  First, the Court noted that the parties stipulated to the fact that Smith sought to sell “customized and tailored” speech for each couple.  Second, the Court noted that it does not matter that someone is offering their speech for pay – i.e., that they have entered the commercial market when it comes to the First Amendment. The Court notes that these commercial speakers do not lose their First Amendment protections. Simply, Colorado cannot “force an individual to utter what is not in her mind” and the government may not alter her message.  (internal quotations omitted).

Justice Sotomayor dissented, joined by Justices Kagan and Jackson, calling the majority’s opinion “profoundly wrong.”  The dissent proposes a straightforward principle. That “if a business chooses to profit from the public market, which is established and maintained by the state, the state may require the business to abide by a legal norm of nondiscrimination. In particular, the state may ensure that groups historically marked for second-class status are not denied goods or services on equal terms.”

Under the dissent’s view, the public accommodation law targets conduct not speech, and it therefore would not violate the First Amendment under the Court’s precedent as the “Constitution contains no right to refuse service to a disfavored group.”

The dissent relies on a different set of cases to support its arguments that the refusal to provide a wedding website to same-sex couples does not violate the First Amendment. In Katzenbach v. McClung, the Supreme Court rejected the owner of a BBQ restaurant’s argument that Title II of the Civil Rights Act violated the “personal rights of persons in their personal convictions to deny services to Black people.”  The Court similarly rejected, as “patently frivolous,” in Newman v. Piggie Park Enterprises, Inc, a drive-in restaurant owner’s argument that requiring him to “contribute to racial integration in any way violated the First Amendment by interfering with his religious liberty.”  And finally, in Runyon v. McCray, the Court also rejected a “commercially operated” school’s argument that it had “a First Amendment right to exclude Black children” despite antidiscrimination laws to the contrary.  In Runyon, the Court reasoned that the “government’s regulation of conduct did not inhibit the schools’ ability to teach its preferred ideas or dogma.” Like in these cases, the dissent argues here that the law is not regulating Smith’s speech and she should not be able to circumvent the antidiscrimination law by “claiming an expressive interest in discrimination.”

For example, both the State and the dissent point out that Smith could have chosen to offer any message she wishes, including wedding websites that only have biblical quotations on them describing marriage as between a man and a woman.  Per the dissent, the issue is just that Smith may not refuse to sell that website with the biblical quotes to a same-sex couple. The dissent points out and the State agreed in briefing that Smith can convey any message she wishes, she must just offer that message to all comers regardless of protected characteristics.

The dissent explains that the decision is sweeping and that “while the consequences of today’s decision might be most pressing for the LGBT community, the decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity.”  Under the majority’s decision, a website designer could just as easily refuse to create a website for an interracial couple, or for a disabled couple, or for any other individuals regardless of antidiscrimination laws that would otherwise prohibit such refusal.

IMLA joined an amicus brief in this case authored by Aileen McGrath and Juliana DeVries.  Amici argued that the Court should not weaken local anti-discrimination efforts by creating exceptions to public accommodation laws.  Amici also argued that any such exception would prove unworkable given how difficult it would be to determine what a custom or expressive business is.  The majority and dissent touched on that issue, but the majority essentially punted in this case, indicating that it was clear in this case the website designer is engaged in expressive speech.  One of the issues going forward will therefore be to try to discern the contours of what businesses are engaged in speech and therefore potentially exempt from public accommodation laws.

To read the Court’s opinion, click here.

To read the amicus brief, click here.