MIXED MESSAGING: PREVIEWING 303 CREATIVE AND ITS PLACE IN CURRENT FREE SPEECH JURISPRUDENCE

By: Samuel E. Ferguson, Volume 107 Staff Member

This term, the Supreme Court of the United States will decide 303 Creative LLC v. Elenis.[1] The Court will decide whether a Colorado public accommodation law violates the Free Speech Clause of the First Amendment by compelling a website designer to speak or stay silent about her unwillingness to serve same-sex couples. In this Post, I predict that the Court will rule in favor of 303 Creative, the website designer, and hold that the application of Colorado’s public accommodation law is unconstitutional when applied to businesses engaged in purely expressive services. This limitation will allow the Court to keep essential services within the reach of public accommodation laws but will leave room for lower courts to use discretion in unusual applications of the law.

I. BACKGROUND

The Colorado Anti-Discrimination Act (CADA) restricts the ability of a private entity serving the public, a public accommodation, to refuse services based on a customer’s identity,[2] but includes an exception for places that are “principally used for religious purposes.”[3] Lorie Smith and her website design company 303 Creative plan to create wedding websites for soon-to-be newlyweds.[4] Collectively, they wish to make a public statement explaining that because of 303 Creative’s “religious ideals,” the company “will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman.”[5] Appellants brought this broad pre-enforcement challenge because the company’s intentions conflict with the communication provisions of CADA.[6] Appellants challenged CADA’s constitutionality on free speech, free exercise, and vagueness and overbreadth grounds.[7] Below, the district court denied Appellants motions for a preliminary injunction and summary judgement,[8] then granted Appellee summary judgement.[9] The Tenth Circuit affirmed, holding that Colorado’s governmental interest in curbing status-based discrimination prevents the court from treating 303 Creative as an exception to CADA.[10]

The Court applies different levels of scrutiny to public accommodation laws depending on the nature and burden the law imposes on speech. Content-based regulations and content-neutral regulations are subject to different levels of scrutiny. “Content-based regulations ‘target speech based on its communicative content,” and are presumed unconstitutional.[11] Content-neutral regulations target conduct, rather than speech generally.[12] Content-neutral regulations tend to be subject to no more than intermediate scrutiny and do not usually pose First Amendment issues, despite whether the law applies “incidental” burdens to speech.[13] CADA’s communication provision is a content-neutral law, as it targets discriminatory conduct, rather than speech itself.[14]

The Supreme Court most recently discussed this question in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.[15] There, a same-sex couple visited Masterpiece Cakeshop and requested the company create a cake for their wedding.[16] The cakeshop declined to do so based on their religious beliefs and the couple filed charges of discrimination under CADA.[17] Justice Kennedy, writing for the 7-2 majority, held that compelling Masterpiece to make the cake would be a violation of the baker’s Free Exercise right under the First Amendment.[18] Kennedy discussed CADA’s constitutionality on free speech grounds, but opted not to resolve the issue.[19] Masterpiece noted that “religious and philosophical objections to gay marriage” can sometimes be protected forms of expression, but the general rule is that businesses are not allowed to deny same-sex couples equal treatment under a “neutral and generally applicable public accommodation law.”[20] The inquiry into whether a public accommodation law burdens speech is fact specific and will depend on the details of an entity’s “refusal to provide service.”[21] Because Kennedy chose to defer the question of CADA’s constitutionality regarding free speech in Masterpiece Cakeshop, the Court faces the question again in 303 Creative.

II. THE SUPREME COURT HAS INVALIDATED PUBLIC ACCOMMODATION LAWS IN THE PAST

The Supreme Court has invalidated public accommodation laws like CADA in the past.[22] In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the organizers of the Boston St. Patrick’s Day Parade denied a place in the parade for the Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB).[23] The lower court ordered the organizers to include GLIB in the parade based on a Massachusetts accommodation law.[24] Writing for a unanimous majority, Justice Souter noted that compelling the parade organizers to include GLIB “violate[d] the fundamental First Amendment rule that a speaker has autonomy to choose the content of his own message” and to, conversely, choose what not to say.[25] The Massachusetts accommodation law burdened the parade organizers by compelling them to include GLIB sponsors because such sponsorship would alter the desired messaging of the parade.

Similarly, in Boy Scouts of America v. Dale, the Court looked at whether revoking an assistant scoutmaster’s membership because of his homosexuality violated the Boy Scouts of America’s First Amendment right to expressive association.[26] The New Jersey Supreme Court held that the action violated New Jersey’s public accommodation law and did not violate the organization’s right to expressive association.[27] The Supreme Court reversed in a 5-4 decision written by Justice Rehnquist.[28] There, the Court noted that The Boy Scouts of America “assert that homosexual conduct is inconsistent with the values it seeks to instill” and that maintaining Dale’s status as a scoutmaster would “force the organization to send a message”[29] that “the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”[30]

Hurley and Dale are examples of cases where the application of a public accommodation law exceeded the bounds of ensuring equal access to commercial goods and services. In both cases, the Court found that both state’s public accommodation laws compelled each organization to send a message inconsistent with the values of the organization. 303 Creative is similar.

III. THE SUPREME COURT WILL LIKELY RULE IN FAVOR OF 303 CREATIVE

The Supreme Court granted certiorari in part to determine “[w]hether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”[31] I predict the current Supreme Court of the United States will rule in favor of 303 Creative and find that CADA imposes a direct burden on Appellant’s right to free speech.

First, the application of CADA in this case is unusual, and strays from the overall goal of the law, which is to provide equal access to commercial goods and services. 303 Creative presents a unique set of facts. Wedding websites are a non-essential service that can be solicited online, without any geographic limitations. While 303 Creative may not offer its services to same-sex couples, there are bountiful alternative companies who will, and there is no geographic barrier to accessing those services. Forcing this owner who values her religion to provide services inconsistent with her religious beliefs reads as an odd application of this law and goes beyond what is required to ensure equal access to the services in general. Additionally, this service is innately non-essential, and cannot be likened to essential services such as healthcare or lodging, where governmental interests demand strict applications of laws like CADA. The law in this case is reaching beyond what is necessary to ensure equal access to services.

Second, like Hurley and Dale, 303 Creative’s production of a website inconsistent with her religious beliefs removes her autonomy to choose the “content of h[er] own message”[32] 303 Creative is engaged in a form of expression. Forms of art arguably have more protection under the First Amendment.[33] 303 Creative is a company where the distinction between private expression and commercial services are blurred. While 303 Creative is engaged in a commercial business, the services provided by the company are an artistic form of messaging.

303 Creative’s facts are distinguishable from other applications of this law. A doctor does not send an expressive message about her beliefs by choosing who she treats, and a server does not send expressive messages by refusing service. Here, 303 Creative is distinct because she is quite literally creating a platform to communicate a message. Furthermore, the creation of the platform involves a level of artistic expression missing in both the examples with the doctor and the server. Because 303 Creative is in the business of creating messages, CADA alters her ability to choose that message. This argument addressing the challenging distinction between commerce and expression is not new and has been used in past challenges to public accommodation laws.[34]

Past case law and the facts of 303 Creative suggest that the Court will find the application of CADA to be unconstitutional. However, it will likely limit its holding to services that are innately expressive rather than striking down the whole communications section of the statute. Limiting the application here could ensure that essential services such as health care, law, and banking remain in compliance with public accommodation laws, but would still allow district courts to analyze applications of such laws on a case-by-case basis.

 

[1] No. 21-476. Oral argument is set for December 5, 2022.

[2] Colo. Rev. Stat. Ann. § 24-34-601(2) (West 2021).

[3] Id.

[4] 303 Creative LLC v. Elenis, 385 F. Supp. 3d 1147, 1151 (D. Colo. 2019).

[5] Id.

[6] Id.

[7] Id. at 1152.

[8] Id. at 1164.

[9] 303 Creative LLC v. Elenis, 405 F. Supp. 3d 907, 911–912 (D. Colo. 2019).

[10] 303 Creative LLC v. Elenis, 6 F.4th 1160, 1190 (10th Cir. 2021).

[11] Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2371 (2018).

[12] Rumsfield v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 62 (2006).

[13] United States v. O’Brien, 391 U.S. 367, 377 (1968) (holding that if a law “promotes a substantial government interest” unrelated to the suppression of speech and, absent that law, the interest would be “achieved less effectively,” it withstands scrutiny). Courts will generally uphold a content-neutral law if it does not “burden substantially more speech” than necessary to further the government interest. Turner Broad Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994.)

[14] Colo. Rev. Stat. Ann. § 24-34-601(2) (West 2021).

[15] 138 S Ct. 1719 (2018).

[16] Id. at 1723.

[17] Id.

[18] Id. at 1724.

[19] Id. at 1726­–27.

[20] Id. at 1727.

[21] Id. at 1723.

[22] Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (holding that a New Jersey public accommodation law compelling the Boy Scouts to admit gay troop leaders was a violation of the Boy Scouts’ First Amendment right of expression.); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 576–77 (1995) (holding narrowly that a Massachusetts public accommodation law compelling a Boston based Veterans Council to include a LGBTQIA+ sponsor in the parade altered the council’s “right to autonomy over [its] message” and did not serve a government interest).

[23] Id. at 557.

[24] Id. at 562–563.

[25] Id. at 573.

[26] Dale, 530 U.S at 644–45.

[27] Id. at 646.

[28] Id. at 642.

[29] Id. at 644.

[30] Id. at 653.

[31] 303 Creative LLC v. Elenis, 142 S. Ct. 1106 (2022) (emphasis added).

[32] Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 573.

[33] Id. at 569 (observing that abstract art and instrumental music are “unquestionably shielded” by the First Amendment). Indeed, The Supreme Court could be signaling this line of argumentation by specifically referring to Appellant as an “artist” when granting certiorari. 303 Creative LLC v. Elenis, 142 S. Ct. 1106 (2022).

[34] See, e.g., Elane Photography LLC v. Willock, 309 P.3d 53, 63 (N.M. 2013) (discussing Appellant’s argument that her photography business is an “expressive art form” that is fully protected by the First Amendment).