U. S. Supreme Court Rules State Public Accommodations Laws Do Not Control Over First Amendment Speech Rights

By Nik Soukonnikov and Heather J. Van Meter - Bullard Law

July 5, 2023

The U.S. Supreme Court, in a 6-3 ruling in 303 Creative LLC v. Elenis, held that a business owner’s Free Speech rights enshrined in the First Amendment to the U.S. Constitution prevail over a state public accommodation law that prohibits certain types of discrimination by business owners.

Lorie Smith is the sole owner and proprietor of a website and graphic design business in Colorado, 303 Creative LLC. Colorado’s public accommodations law prohibits businesses open to the public from discriminating against certain protected persons and groups, including same-sex couples. Smith wished to expand her website and graphic design business to include creating wedding websites. Based on her Christian belief that marriage is between one man and one woman, she did not want to create wedding websites for same-sex couples. Concerned that this would be a violation of the Colorado public accommodations law, she filed a lawsuit seeking an injunction to prevent the state from forcing her to create websites celebrating marriage that defy her beliefs about marriage.

After years of litigation, the U.S. Supreme Court found that Smith could not be forced to create wedding websites celebrating the marriages of same-sex couples would violate her Free Speech rights guaranteed in the First Amendment of the U.S. Constitution. Reasoning that the state’s goal in doing so was to “excise certain ideas or viewpoints from the public dialogue,” the Court found that “Colorado’s ‘very purpose’ in applying the law” to Smith was to coercively eliminate “dissenting ‘ideas’ about marriage.” The Court held such restriction to be unconstitutional.

The conclusion of the Court that government may not compel pure speech was significantly bolstered by the stipulations in this case, which turned out to be determinative to the outcome. Specifically, the parties stipulated that websites created by Smith would be “pure speech,” subjecting any government restrictions on Smith’s creation of them to strict scrutiny. They also agreed that Smith was willing to provide her services to anyone, regardless of their gender or sexual orientation, and that she refused to create websites with speech she disagreed with, regardless of who requested their creation. Finally, the parties stipulated that websites created by Smith’s company would be expressing her speech and the speech of her company.

The Court rejected the idea that someone who “speaks for pay” like Smith must “accept all commissions on the same topic – no matter the underlying message.” The Court cautioned that public accommodations statutes may “sweep too broadly when deployed to compel speech.”

Thus, the Court did not reach the question of how or whether the Colorado statute in question would apply in situations where what is being sold to the public is a mixed product of speech and ordinary commercial goods, and it explicitly did not consider the case of a refusal to provide generally-available (as opposed to uniquely created) goods to same-sex couples.

What appears clear from the decision is that a person who “speaks for pay” and provides their service to customers without regard to those customers’ membership in a particular protected class may refuse to speak for pay on a topic with which that person disagrees, even if that topic implicates the customers’ membership in a particular protected classification. Because this case dealt with a sole proprietorship, it does not appear to deal with questions of employee speech and is, therefore, likely to be of limited applicability to businesses as employers.

Notably, this is a free speech case.  This ruling, while protecting business owners’ speech rights, does not extend to all businesses. The Court’s ruling likely extends to businesses involving speech, such as public relations, creative media (print, web, film, music, radio), artists, apparel makers, outdoor advertising companies, and other businesses that involve “expressive activity.”  This ruling likely does not extend to businesses performing non-speech activities, such as food and beverage companies, landlords, manufacturers of non-messaged goods, banking and finance, healthcare providers (with some possible exceptions), and others.  Educational institutions and some healthcare providers of gender-specific services may be in a gray area following this ruling, and Bullard Law can advise as needed.

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