“You Couldn’t Pay Me to Say That”:  303 Creative and Compelled Commercial Speech

Claremont Institute author Christopher Caldwell’s 2020 book The Age of Entitlement: America Since the 1960s was aptly described in the New York Times by Brookings Institution fellow Jonathan Rauch as “provocative and pessimistic.” Provocative, because Caldwell posited that the Civil Rights Act of 1964 gave rise to competing constitutional orders—the pre-existing “de jure constitution,” under which private sector freedoms of association and speech were to operate beyond the reach of direct government control, and a new, de facto “minoritarian constitution,” in which these same freedoms would be repeatedly subordinated to the imperatives of public accommodation that drove the civil rights revolution. Pessimistic, because Caldwell suggested an irreconcilable conflict between these dueling constitutional visions, with no clear path to a broadly accepted consensus.

The United States Supreme Court’s June 30 decision in 303 Creative, LLC v. Elenis reflects what is to date the most direct effort by the Court to grapple with the tension at the heart of Caldwell’s controversial thesis. In a 6-3 decision, the Court held that the First Amendment prevented Colorado from using the Colorado Anti-Discrimination Act (“CADA”) to force a graphic designer to “create websites celebrating marriages that defy her belief that marriage should be reserved to unions between one man and one woman.” Justice Gorsuch, writing for the majority, held that the creative activity and customized content reflected in the designer’s proposed wedding websites was “pure speech.” Therefore, under existing First Amendment precedent, the government could not compel her to “abandon her conscience and speak [Colorado’s] preferred message instead,” even in a commercial context where the designer was advertising and selling her creative services.

Justice Sotomayor, writing for herself and Justices Kagan and Jackson, dissented. Sotomayor’s dissent in many ways parallels the part of Caldwell’s thesis addressing the “minoritarian constitution.” Sotomayor points to the Court’s 1883 Civil Rights Cases (striking down the federal Civil Rights Act of 1875), notes the Jim Crow laws enacted in southern states as a result, and highlights the eventual abolition of the Jim Crow regime via the Civil Rights Act of 1964 and (more importantly) the Court’s post-1964 cases upholding federal and state public accommodation laws against First Amendment challenges. From this history and precedent, Sotomayor draws the lesson that the First Amendment’s guarantees of freedom of speech and freedom of association have little relevance in the commercial realm, at least where the exercise of such freedoms reflects “invidious discrimination” by private commercial actors against members of a statutorily protected class.

A point-by-point analysis of the competing majority vs. dissent arguments is not entirely productive, in part because (as the majority correctly notes) much of the dissent seems untethered from the specific facts that were before the Court. In the lower court proceedings, Colorado and plaintiff 303 Creative agreed on a series of stipulations concerning the nature of the plaintiff’s wedding website services. The Court’s opinion emphasizes that per these stipulations, the plaintiff Lorie Smith (a) would work with customers in all protected classes and would “gladly create custom graphics and websites” for clients of any sexual orientation; (b) would not produce content that “contradicts biblical truth” regardless of who orders it; and (c) would for all of her websites, including her wedding websites, be creating “customized and tailored” content that was “expressive in nature” and would convey a message celebrating and promoting Ms. Smith’s view of marriage.

The stipulations also established that Ms. Smith’s view of marriage as a union between one man and one woman was a “sincerely held religious conviction,” that viewers of her websites would know they were created by 303 Creative, and that to the extent Ms. Smith could not provide certain services to a potential customer, “there are numerous companies in the State of Colorado and across the nation that offer custom website design services.” Building on these facts, and surveying the Court’s leading compelled speech precedents, the majority concluded that Colorado could not apply CADA in a manner that would force 303 Creative to create websites celebrating a same-sex marriage. Doing so would compel Ms. Smith to create and disseminate a message about marriage that contradicted her sincerely held beliefs.

Going forward, what will 303 Creative mean for disputes that implicate Caldwell’s “two constitutions”—i.e., disputes arising from potential tension between public accommodation laws and the First Amendment? The answer will be shaped in part by the continued appetite of litigants for engineering conflicts that do not arise organically from typical consumer activity in the modern marketplace. One of the striking features of 303 Creative is the extent to which the cases relied upon by both the majority and dissent—involving things like the Pledge of Allegiance, public parade participation, Boy Scout leadership positions, sex discrimination in law firm partnerships, racial discrimination in private schools, and military recruitment on college campuses—are distinct in important ways from creative professionals being asked to generate expressive work containing messages contrary to their beliefs. To the extent 303 Creative plows new ground, it is probably because members of protected classes who wish to purchase creative services have a wide range of providers anxious to secure their business, and thus legal disputes involving attempts to compel reluctant creators are rare. The nature of expressive, creative work is also such that consumers would not ordinarily wish to risk the quality of the product or service by conscripting a reluctant vendor to create messages that contradict the vendor’s sincere personal beliefs.

Nonetheless, at least in the short term, other similar disputes may arise. One likely battleground will concern the scope of what constitutes “expressive” services, such that forcing a seller to generate expressive or creative works against their will can reasonably be construed as compelled speech, thus implicating the First Amendment. The 303 Creative majority lists clear examples—artists, speechwriters, muralists, movie directors, web designers—while also emphasizing that the First Amendment’s protections apply to “all manner” of “creative professionals” “whose services involve speech.” The dissent raises hypothetical discrimination scenarios in relation to services such as corporate headshots and passport photos, but it is not at all obvious that photos of this sort contain a “message” comparable to the “pure speech” involved in creating “customized and tailored” websites celebrating specific weddings. And that, ultimately, is probably the key factor under the 303 Creative framework: does the product or service in question, viewed in a vacuum, convey an intelligible message that contradicts the sincerely held beliefs of the vendor tasked with providing it?

Beyond that core question, other factors will also shape the landscape in future cases. The fact that 303 Creative bars compelled speech must coexist with established precedent upholding restrictions on speech in the public accommodation context—specifically, restrictions barring businesses from public statements or messages indicating that certain customers are not welcome merely because they are members of a protected class. The 303 Creative majority highlighted the continuing vitality of this distinction, by juxtaposing the company’s general willingness to serve customers regardless of sexual orientation with the company’s specific unwillingness to create customized and tailored websites celebrating same-sex weddings, even if those wishing to purchase such a website (perhaps as a gift) were heterosexual.

303 Creative’s reach will also be affected by how future courts conceptualize the governmental interest at stake in such cases. Justice Sotomayor’s dissent argues that prevention of dignitary harm to members of a protected class is a compelling state interest, properly vindicated through public accommodation laws requiring commercial businesses to serve all customers on equal terms. This focus on the dignity of prospective customers, while drawing support primarily from post-1964 cases dealing specifically with racial discrimination against black consumers, has not previously been interpreted to allow public officials to treat commercial businesses as sock puppets, forced to parrot government messages that track on a rolling basis the evolving scope of state and federal public accommodation laws. It remains to be seen how future courts will continue to refine the balance between the government’s interest in preventing dignitary harm, with 303 Creative’s refusal to allow Colorado to “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”

At their core, the conflicting views of the majority and dissent in 303 Creative arise from the constitutional tension identified in Caldwell’s discussion of what he describes as the “de jure” and “minoritarian” constitutions. Modern public accommodation laws, beginning with the Civil Rights Act of 1964, are by definition designed to limit the ability of commercial actors to exclude members of protected classes from full and equal participation in the marketplace. And the 303 Creative dissent is correct to note that businesses challenging such laws have often sought to advance their objections under the protective banner of the First Amendment. But as the dissent itself emphasizes, the story of public accommodation laws since the 1960s is one of continuous expansion in scope. The Civil Rights Act of 1964 specified a handful of protected classes and barred discrimination in a limited subset of businesses (primarily hotels, restaurants, and entertainment venues). Modern public accommodation laws, however, have shown (per Sotomayor) a “capacity to evolve,” and now encompass an ever-growing number of protected classes and characteristics, while barring invidious discrimination by businesses of all types, in virtually every sector of the public market.

Thoughtful observers should not be surprised that this expansion in scope might bring corresponding adjustments to what the dissent implies is an evolving constitutional balance between public accommodation laws and the First Amendment. 303 Creative prevents a First Amendment violation where it would be most keenly felt—the government commanding an individual to use her creative talent to create and promote a message antithetical to her conscience or beliefs. Indeed, the lack of similar previous cases before the Supreme Court is striking, and may suggest a tacit consensus among public officials that attempting to compel creative professionals to craft and distribute expressive messages against their will was a First Amendment redline, not lightly to be crossed.

The rarity of reported cases involving compelled provision of expressive, message-bearing services also suggests what common sense confirms: such services are widely available to the full spectrum of potential consumers, and aggressive enforcement efforts of the sort pursued by Colorado appear to be more about policing dissent than ensuring equal access to the public markets. Indeed, the majority found that “the coercive elimination of dissenting ideas about marriage constitutes Colorado’s very purpose in seeking to apply its law to Ms. Smith.” 303 Creative is perhaps best understood as judicial pushback against this effort to—in the Court’s words—“excise certain ideas or viewpoints from the public dialogue.”  And in taking this stand, the case also reflects the majority’s belief—contra Caldwell—that public accommodation laws can succeed in promoting equal access to the marketplace, without relying on an enforcement approach that threatens grave harm to civic comity and the First Amendment.