Key Cases
Free Speech
Supreme Court Decides Freedom of Speech Trumps Public Accommodations Law
In 303 Creative LLC v. Elenis, No. 21-476 (June 30, 2023), the U.S. Supreme Court reversed 6-3 the lower courts' denial of the injunction the plaintiff sought against the Colorado Anti-Discrimination Act (CADA). The plaintiff sought to expand her graphic design business to include services for couples seeking wedding websites but worried for religious reasons that CADA would compel her to create websites defying her belief that marriage should be reserved to unions between one man and one woman. The parties stipulated that the websites that the plaintiff plans to create are "expressive in nature." CADA prohibits all "public accommodations" from denying the full and equal enjoyment of its goods and services to any customer made on the basis of race, creed, disability, sexual orientation or other statutorily enumerated trait. C.R.S. ' 24-34-601(2)(a). Either state officials or private citizens may bring actions to enforce the laws. C.R.S. ' 24-34-306, 24-34-602(1).
The Supreme Court agreed with the U.S. Court of Appeals for the Tenth Circuit that the wedding websites that plaintiff Lorie Smith seeks to create qualify as pure speech protected by the First Amendment and involve her speech, notwithstanding that they may combine with that of the couples in a final product. The Supreme Court also agreed with the Tenth Circuit that if Ms. Smith offers wedding websites celebrating marriages she endorses, the state intends to compel her to create custom websites celebrating other marriages she does not. Finally, the Supreme Court agreed with the Tenth Circuit that the "[e]liminati[on]" of dissenting ideas about marriage constitutes Colorado's "very purpose" in seeking to apply its law to Ms. Smith. The Supreme Court disagreed with the Tenth Circuit that the Free Speech Clause allows this. The Supreme Court explained that, if so, "the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic - no matter the underlying message - if the topic somehow implicates a customer's statutorily protected trait."
The Tenth Circuit ruled that Colorado has a compelling interest in enforcing CADA and no option short of coercing speech from Ms. Smith to satisfy that interest because she plans to offer unique services that are, by definition, unavailable elsewhere. The Supreme Court decided that when Colorado's public accommodations law and the Constitution collide, "there can be no question which must prevail": "[T]he State could not use its public accommodations statute to deny speakers the right 'to choose the content' of [their] own message[s]."
Colorado asserted alternative arguments that the Supreme Court considered in tension with the parties' stipulation. Contrary to the stipulation that Ms. Smith intends to create customized and tailored expressive speech for couples, Colorado argued that Ms. Smith could simply repurpose websites celebrating marriages she does endorse for marriages she does not. Contrary to the stipulation that Ms. Smith would gladly conduct business with those having protected characteristics so long as the custom graphics and websites she is asked to create do not violate her beliefs, Colorado insisted that the Supreme Court should find that she refuses to offer the speech due to the customers' protected characteristics. Last, the state emphasized that Ms. Smith offers her speech for pay through a company of one. The court responded that many of the world's great works of literature and art were created with an expectation of compensation.
In conclusion, the court wrote that adhering to "the Constitution's commitment to the freedom of speech means all of us will encounter ideas we consider...
