303 Creative LLC v. Elenis
600 U.S. 570
SCOTUS2023Background
- Lorie Smith, sole owner of 303 Creative LLC, plans to sell custom wedding‑website design; she and Colorado stipulated those sites would be original, customized, and expressive and would convey the designer’s chosen messages.
- Smith will serve customers regardless of sexual orientation but will not create custom content that contradicts her sincerely held belief that marriage is between one man and one woman.
- Colorado’s Anti‑Discrimination Act (CADA) broadly defines public accommodations and forbids denying the "full and equal enjoyment" of goods or services based on protected traits (including sexual orientation); enforcement can be initiated by state authorities or private parties and may carry fines, cease‑and‑desist orders, mandatory training, and compliance reporting.
- Smith filed a pre‑enforcement lawsuit seeking an injunction against application of CADA to compel her to design websites celebrating same‑sex marriages; the district court denied relief and the Tenth Circuit affirmed on the merits.
- The Supreme Court reversed: it held that Colorado may not force a website designer to create expressive designs that convey messages she does not endorse because that would constitute compelled speech in violation of the First Amendment.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (Colorado) | Held |
|---|---|---|---|
| Whether CADA may be applied to require Smith to design websites celebrating same‑sex marriages (i.e., does application compel protected speech?) | Websites are "pure" expressive speech; forcing creation of messages she objects to is compelled speech forbidden by the First Amendment. | CADA regulates conduct/status (anti‑discrimination), not speech; if Smith sells to the public she must serve all—any speech burden is incidental. | Court: Websites are protected speech and Colorado cannot compel her to create messages she disagrees with; compelled‑speech prohibition controls. |
| Does Smith’s commercial activity or corporate form remove First Amendment protection? | Compensation and corporate form do not forfeit speech rights; expressive creators remain protected. | Commercial-for‑pay activity and corporate structure reduce First Amendment protection; regulation of commerce is permissible. | Court: For‑profit status and corporate form do not erase First Amendment protection for expressive activity. |
| If CADA incidentally burdens speech, does O’Brien/FAIR allow enforcement? (i.e., is the burden incidental and justified?) | The State seeks to coerce the designer to adopt its message—this is direct compelled speech, not an incidental burden. | Even if speech is involved, FAIR/O’Brien treat such burdens as incidental to neutral regulation of conduct and thus permissible. | Court: Distinguishing FAIR/O’Brien, this case involves direct compulsion of expressive content; the government may not force speakers to utter messages they do not hold. |
| Whether the State’s interest in preventing discrimination justifies compelling the designer’s speech | Smith: The State’s interest does not permit coercing expressive content; precedent bars compelling speech even to achieve nondiscrimination. | Colorado: preventing status‑based exclusion in public marketplace is a compelling, narrowly tailored interest that allows enforcement against public‑facing businesses. | Court: While the State’s interest is compelling in general, it cannot be pursued by compelling an individual to speak messages she rejects; precedents protecting speakers prevail. |
Key Cases Cited
- West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (U.S. 1943) (government may not compel individuals to utter a belief or message).
- Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557 (U.S. 1995) (public‑accommodations law cannot be applied to alter expressive content of a parade).
- Boy Scouts of Am. v. Dale, 530 U.S. 640 (U.S. 2000) (expressive association may exclude members when inclusion would significantly affect its message).
- Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47 (U.S. 2006) (neutral regulation of conduct may incidentally burden speech when the burden is ancillary to the regulation).
- United States v. O'Brien, 391 U.S. 367 (U.S. 1968) (test for when government regulation of conduct that incidentally burdens speech is justified).
- Roberts v. United States Jaycees, 468 U.S. 609 (U.S. 1984) (public‑accommodations statutes serve compelling interests in eliminating discrimination and vindicating dignity).
- Runyon v. McCrary, 427 U.S. 160 (U.S. 1976) (refusal to provide commercial services on a forbidden status basis is not protected by the First Amendment).
- Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (U.S. 1964) (Congress may prohibit racial discrimination in public accommodations to vindicate equal access).