The United States Supreme Court’s Decision in Creative LLC et al. v. Elenis et al.

On June 30, 2023, the United States Supreme Court addressed whether a public accommodation law which compelled an artist to create custom designs that were contrary to their personal and/or religious beliefs violated the Free Speech Clause of the First Amendment.[1] In a 6-3 decision delivered by Justice Gorsuch, the Court held that the First Amendment prohibited Colorado from requiring that a website designer create expressive designs which advocated content for which the designer disagreed.[2]

BACKGROUND AND PROCEDURAL HISTORY

Petitioner, 303 Creative LLC, owned by Lorie Smith (“Smith”), offered website and graphic design, marketing advice, and social media management services.  Smith intended to expand her business to include services for couples seeking wedding-themed websites, but she did not want to provide this service to theoretical same sex couples because it was contrary to her beliefs and values.[3]  Critically, she had not provided wedding website design previously, nor did she have any LGBTQ+ customers seeking her services at the time.[4] Smith argued that she would be compelled to create websites celebrating marriages for same sex couples under the Colorado Anti-Discrimination Act (“CADA”),  which prohibited the granting of a public accommodation to a business which had the effect of denying “the full and equal enjoyment” of that business’s goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait.[5]  As a result, Smith filed a lawsuit to “clarify her rights” against the State of Colorado (“Colorado”) by seeking an injunction that prevented the State from requiring Smith to provide these services, on behalf of her business, to prospective LGBTQ+ customers.[6]

THE COURT’S DECISION

1. Whether a public accommodation law violates the Free Speech Clause of the First Amendment when it compels an artist to create custom designs that go against their beliefs.

In assessing Smith’s claim, the Court explained that the Free Speech Clause of the First Amendment was designed to protect the “freedom to think as you will and to speak as you think.”[7] Based on this standard, the First Amendment protects an individual’s right to maintain their beliefs regardless of whether the government considers that individual’s speech pertaining to those beliefs sensible and well intentioned or deeply misguided.[8] Thus, the Court found that Smith’s websites qualified as “pure speech,” as they promised to contain images, words, symbols, and other modes of expression that are her original, customized creation in order to communicate ideas.[9] The fact that her speech was online, as opposed to being a hand written communication, did not change that classification.[10] Further, the Court determined that Colorado violated the protections granted under the First Amendment by compelling speech that would go against Smith’s beliefs in order to “excise certain ideas from public dialogue.”[11]

The Court opined:

In Hurley, Dale, and Barnette, the Court found that governments impermissibly compelled speech in violation of the First Amendment when they tried to force speakers to accept a message with which they disagreed. Here, Colorado seeks to put Ms. Smith to a similar choice. If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs…Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.[12]

The Court acknowledged the importance of public accommodation statutes in protecting citizens and their rights, but  also noted that “public accommodations statutes can sweep too broadly when deployed to compel speech.”[13] Colorado argued that the website service entails the sale of a commercial product and all that Smith must do to comply is to repurpose websites for marriages she does endorse for those that she does not.[14] In response, the Court found that Smith was not creating a commercial product, but rather, sought to create customized and tailored speech for each couple.[15] Compensation does not amount to a speaker shedding their First Amendment protection, and thus, Smith was protected in deciding whether to serve a customer or not.[16]

The Court concluded:

[h]ere, Colorado does not seek to impose an incidental burden on speech. It seeks to force an individual to utter what is not in [her] mind about a question of political and religious significance… No government, FAIR recognized, may affect a speaker’s message’ by forc[ing] her to ‘accommodate’ other views, no government may alter the expressive content’ of her message, and no government may interfer[e] with her desired message.[17]

CONCLUSION/IMPLICATIONS

In its ruling, the Supreme Court effectively prohibits States from compelling business owners to create designs or perform custom work for customers if that work goes against the owners’ personal beliefs, specifically in the context of wedding websites. According to the Court, if the business’s product constitutes “pure speech,” it is guaranteed protection under the First Amendment. “Pure speech” includes custom designs, pictures, graphics, or any other product which is not commercial in nature, but rather a unique product coming from the owner of the business. 

Valerie M. Ferdon is a Shareholder at the firm’s Hartford office and is a member of the Employment Practices Group and the Litigation Practice Group. She can be reached at vferdon@uks.com or (860) 548-2607.

Matthew Warden is an associate in the Firm’s Hartford office, where he practices in the areas of commercial litigation, insurance coverage and defense litigation, product liability and toxic torts, professional liability, construction, and employment law. While in law school, Mr. Warden served as a contributing member and editor for the Quinnipiac Probate Law Journal.  He can be reached at mwarden@uks.com or at (860) 548-2668.

Michael Francomano is a summer associate at the Firm’s Hartford office.  Mr. Francomano attends Boston College Law School and is entering his final year of law school.

[1] 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2303 (2023)
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 2310.
[8] Id. at 2312.
[9] Id. at 2316
[10] Id. at 2312.
[11] Id. at 2313.
[12] Id. at 2313-14
[13] Id at 2315.
[14] Id at 2316.
[15] Id.
[16] Id.
[17] Id. at 2318.