The left’s response to the decision in 303 Creative v. Aubrey Elenis has largely been screeching that the Supreme Court has authorized open discrimination and the violation of “equal rights.” Despite progressives casting the case as being all about a graphic designer refusing to serve a particular community, the ruling was grounded in the stipulated fact that the creation of a website is an expressive act. That leaves no doubt that the law cannot compel an opinion in the marketplace—no matter how unpopular it may be.
As such, 303 Creative v. Aubrey Elenis was about nothing less than how far free speech extends in the United States. And thankfully, the court reaffirmed that our republic is still in the business of advancing, not curtailing, expression, for the act is key to our experiment in self-governance.
This case arose from the desire of Denver-based graphic designer Lorie Smith to expand the services of her business, 303 Creative, to couples seeking wedding websites. At the same time, she, an evangelical Christian, knew that her unwillingness to betray her belief that marriage is between one man and one woman would expose her to liability under the Colorado Anti-Discrimination Act’s (CADA) exceedingly broad definition of a “public accommodation.” And potential penalties would have included fines, cease-and-desist orders, participation in mandatory educational programs, and submission of ongoing compliance reports.
Smith wisely preemptively sued the Colorado Civil Rights Commission and other state officials in an effort to prevent the application of the CADA.
Importantly, the Supreme Court’s ruling in her favor last week stemmed from a number of stipulated facts—facts that both the plaintiff and the defendant accepted as true. The court noted that both parties acknowledged that:
Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender” and “will gladly create custom graphics and websites” for clients of any sexual orientation; she will not produce content that “contradicts biblical truth” regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are “expressive” and her “original, customized” creations “contribut[e] to the overall message” her business conveys “through the websites” it creates; the wedding websites she plans to create “will be expressive in nature…”
Justice Neil Gorsuch delivered the court’s majority opinion. “The First Amendment,” he wrote, “prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which that designer disagrees.” The opinion is consonant with nearly all of the 10th Circuit’s analysis of the case, stressing that Smith’s wedding websites were indeed creative and highly personalized. That means, crucially, her websites would be classified as “pure speech” rather than “ordinary commercial goods.”
As for the State of Colorado, it sought, the court continued, to compel speech in order to eliminate certain ideas from public discourse. “Indeed,” Gorsuch wrote, “the 10th Circuit recognized that the coercive “[e]liminati[on]” of dissenting “ideas” about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith.” A goal that, if achieved, would leave to the whims of the state whether speech in the marketplace is allowed.
Unlike the decision reached by the 10th Circuit Court of Appeals, the Supreme Court’s decision was rooted in the stipulations above and a series of precedents that prevent the government from compelling speech of particular content and opinion.
In referencing West Virginia Bd. of Ed. v. Barnette, and the case law surrounding it, Gorsuch argued that “Colorado seeks to put Ms. Smith to a similar choice: If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs… Under our precedents, that ‘is enough,’ more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely….” No matter how laudable the goal of any particular idea may be, being compelled to parrot only opinions approved by the state as a prerequisite to both speaking and to doing business is only a hollow shell of free speech.
Writing in dissent, Justice Sotomayor argued that, the stipulations notwithstanding, the websites that Smith sought to sell are ordinary commercial products that are not protected as pure speech, and, therefore, any infringements are incidental and allowed.
In response, the majority opinion correctly argued that selling a service is not sufficient to classify it as an ordinary commercial good, noting that many great artistic endeavors have been carried out with the expectation of payment. They further returned to the stipulations of fact, including that Smith was willing to sell her services to anybody until their requests required her to engage in speech that was contrary her deeply held beliefs. They argued that Colorado is not seeking to “ensure the sale of goods or services on equal terms,” but the state is compelling “an individual to create speech she does not believe in.”
If the arguments raised in the dissent had been broadly accepted, warned Gorsuch, the “government may compel anyone… to accept all commissions on [a] topic–no matter the message–if the topic somehow implicates a customer’s statutorily protected trait.” Indeed, at its core, 303 Creative v. Aubrey Elenis was not about whether a business may discriminate because of its own beliefs, but rather whether the state may compel speech of a particular opinion even out of a desire to achieve equal access in the marketplace.
Claims, primarily made by the left, that free speech doesn’t extend to the marketplace—that the power of government to limit expression is virtually unlimited—are utterly wrong. Fortunately, the court recognized that pure speech in the marketplace is still speech, and, thus, is deserving of constitutional protection. That would seem to be a no-brainer. But, as we’ve too often seen in this age, even our foundational traditions and institutions are far from sacred.
Dr. Ryan M. Yonk is Senior Research Faculty at the American Institute for Economic Research.
Lauren Frazier is a research intern at the American Institute for Economic Research and an Economics student at Truman State University.
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