303 Creative LLC v. Elenis
600 U.S. 570 (2003)
Lorie Smith, the owner of a graphic design and website business, 303 Creative LLC, in Colorado hoped to expand her business to include services for couples seeking wedding websites. She envisioned the sites as providing text, graphic arts, and videos to “celebrate” and “conve[y]” the “details” of each couple’s “unique love story.” According to Smith, all of the text and graphics on these websites will be “original,” “customized,” and “tailored” creations that are “expressive in nature,” designed “to communicate a particular message.” Viewers will know, “that the websites are [Ms. Smith’s] original artwork,” because the name of her company will be displayed on every one.
These were Smith’s plans but she was concerned about implementing them because she worried that the state of Colorado will force—“compel”—her to create websites that are inconsistent with her belief that marriage should be reserved to unions between one man and one woman. The reason for her concern was a Colorado law, the Colorado Anti-Discrimination Act (CADA). CADA is a public-accommodation law, which prohibits almost every public-facing business from denying “the full and equal enjoyment” of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait.
To clarify her rights, Ms. Smith filed a lawsuit in federal district court. In that suit, she sought to prevent the State from forcing her to create wedding websites celebrating marriages that defy her beliefs. The district court ruled against her, as did the U.S. Court of Appeals for the Tenth Circuit. The court of appeals acknowledged that because Ms. Smith’s planned wedding websites qualify as “pure speech” protected by the First Amendment, Colorado had to satisfy “strict scrutiny,” that is, Colorado had to show both that requiring Smith to create speech with which she disagreed would serve a compelling governmental interest and that no less restrictive alternative exists to secure that interest.
The court concluded that Colorado met this standard: it has a compelling interest in ensuring “equal access to publicly available goods and services,” and no option short of coercing speech from Ms. Smith can satisfy that interest because she plans to offer “unique services” that are, “by definition, unavailable elsewhere.” With these losses in the lower courts, Smith took her case to the U.S. Supreme Court.
Justice Gorsuch delivered the opinion of the Court.
The framers designed the Free Speech Clause of the First Amendment to protect the “freedom to think as you will and to speak as you think.” … By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a Nation. For all these reasons, “[i]f there is any fixed star in our constitutional constellation,” West Virginia Bd. of Ed. v. Barnette (1943), it is the principle that the government may not interfere with “an uninhibited marketplace of ideas.”
From time to time, governments in this country have sought to test these foundational principles. In Barnette, for example, the Court faced an effort by the State of West Virginia to force schoolchildren to salute the Nation’s flag and recite the Pledge of Allegiance. [This] Court offered a firm response. In seeking to compel students to salute the flag and recite a pledge, the Court held, state authorities had “ … “invade[d] the sphere of intellect and spirit which it is the purpose of the First Amendment … to reserve from all official control.”
A similar story unfolded in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., (1995). There, veterans organizing a St. Patrick’s Day parade in Boston refused to include a group of gay, lesbian, and bisexual individuals in their event. The group argued that Massachusetts’s public accommodations statute entitled it to participate in the parade as a matter of law. This Court [disagreed]. … The veterans’ choice of what to say (and not say) might have been unpopular, but they had a First Amendment right to present their message undiluted by views they did not share.
Then there is Boy Scouts of America v. Dale. In that case, the Boy Scouts excluded James Dale, an assistant scoutmaster, from membership after learning he was gay. Mr. Dale argued that New Jersey’s public accommodations law required the Scouts to reinstate him. [A]gain this Court [disagreed. The decision to exclude Mr. Dale may not have implicated pure speech, but this Court held that the Boy Scouts “is an expressive association” entitled to First Amendment protection. And, the Court found, forcing the Scouts to include Mr. Dale would “interfere with [its] choice not to propound a point of view contrary to its beliefs.”
As these cases illustrate, the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply “misguided.” … Generally, too, the government may not compel a person to speak its own preferred messages. See Tinker v. Des Moines Independent Community School Dist. (1969). Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. All that offends the First Amendment just the same.
Applying these principles to this case, we conclude that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents. It is a conclusion that flows directly from the parties’ stipulations. They have stipulated that Ms. Smith’s websites promise to contain “images, words, symbols, and other modes of expression.” …
We further [conclude] that the wedding websites Ms. Smith seeks to create involve her speech … . Of course, Ms. Smith’s speech may combine with the couple’s in the final product. But for purposes of the First Amendment that changes nothing. An individual “does not forfeit constitutional protection simply by combining multifarious voices” in a single communication.
As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide. [I]f Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to “forc[e her] to create custom websites” celebrating other marriages she does not. Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.”
While that [lower] court thought Colorado could compel speech from Ms. Smith consistent with the Constitution, our First Amendment precedents laid out above teach otherwise. In … Dale, … and Barnette, this Court found impermissible coercion when [governments tried to force speakers to accept a message with which they disagreed. The same holds here.]
Consider what a contrary approach would mean. Under Colorado’s logic, the government could … force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. … As our precedents recognize, the First Amendment tolerates none of that.
In saying this much, we do not question the vital role public accommodations laws play in realizing the civil rights of all Americans. This Court has recognized that governments in this country have a “compelling interest” in eliminating discrimination in places of public accommodation. … This Court has recognized, too, that public accommodations laws “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” …
At the same time, this Court has also recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech [see Dale]. … And, once more, what was true in those cases must hold true here. When a state public accommodations law and the Constitution collide, there can be no question which must prevail …
[A]biding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” “misguided, or even hurtful. But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is
Reversed.
Justice Sotomayor, with whom Justice Kagan and Justice Jackson join, dissenting
[Colorado’s public accommodation law] “does not dictate the content of speech at all, which is only ‘compelled’ if, and to the extent,” the company offers “such speech” to other customers. Colorado does not require the company to “speak [the State’s] preferred message.” Nor does it prohibit the company from speaking the company’s preferred message. The company could, for example, offer only wedding websites with biblical quotations describing marriage as between one man and one woman. The company could also refuse to include the words “Love is Love” if it would not provide those words to any customer. All the company has to do is offer its services without regard to customers’ protected characteristics. Any effect on the company’s speech is therefore “incidental” to the State’s content-neutral regulation of conduct. …
Once these features of the law are understood, it becomes clear that petitioners’ freedom of speech is not abridged in any meaningful sense, factual or legal. Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws. … Finally, and most importantly, even if the company offers its goods or services to the public, it remains free under state law to decide what messages to include or not to include. … All the company may not do is offer wedding websites to the public yet refuse those same websites to gay and lesbian couples.
Because any burden on petitioners’ speech is incidental to [Colorado’s] neutral regulation of commercial conduct, the regulation is subject to the standard set forth in O’Brien. That standard is easily satisfied here because the law’s application “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Indeed, this Court has already held that the State’s goal of “eliminating discrimination and assuring its citizens equal access to publicly available goods and services” is “unrelated to the suppression of expression” and “plainly serves compelling state interests of the highest order.” The Court has also held that by prohibiting only “acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages,” the law “responds precisely to the substantive problem which legitimately concerns the State and abridges no more speech … than is necessary to accomplish that purpose.” …
Because Colorado seeks to apply [its law] 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.