303
CREATIVE LLC, ET AL., PETITIONERS v. AUBREY ELENIS, ET AL.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
[June 30, 2023]
JUSTICE GORSUCH delivered the opinion of
the Court.
Like many States, Colorado has a law
forbidding businesses
from engaging in discrimination when they sell goods and
services to the
public. Laws along these lines have done much to secure the
civil rights of all
Americans. But in this particular case Colorado does not just
seek to ensure
the sale of goods or services on equal terms. It seeks to use
its law to compel
an individual to create speech she does not believe. The
question we face is
whether that course violates the Free Speech Clause of the First
Amendment.
I
A
Through her business, 303 Creative LLC, Lorie
Smith offers
website and graphic design, marketing advice, and social media
management
services. Recently, she decided to expand her offerings to
include services for
couples seeking websites for their weddings. As she envisions
it, her websites
will provide couples with text, graphic arts, and videos to
“celebrate” and
“conve[y]” the “details” of their “unique love story.” App. to
Pet. for Cert.
182a, 187a, 198a. The websites will discuss how the couple met,
explain their backgrounds,
families, and future plans, and provide information about their
upcoming
wedding. All of the text and graphics on these websites will be
“original,”
“customized,” and “tailored” creations. The websites will be
“expressive in
nature,” designed “to communicate a particular message.” Viewers
will know,
too, “that the websites are [Ms. Smith’s] original artwork,” for
the name of
the company she owns and operates by herself will be displayed
on every one.
While Ms. Smith has laid the groundwork for
her new venture,
she has yet to carry out her plans. She worries that, if she
does so, Colorado
will force her to express views with which she disagrees. Ms.
Smith provides
her website and graphic services to customers regardless of
their race, creed,
sex, or sexual orientation.But she has never created expressions
that
contradict her own views for anyone—whether that means
generating works that
encourage violence, demean another person, or defy her religious
beliefs by, say,
promoting atheism.
Ms. Smith does not wish to do otherwise now,
but she worries
Colorado has different plans. Specifically, she worries that, if
she enters the
wedding website business, the State will force her to convey
messages
inconsistent with her belief that marriage should be reserved to
unions between
one man and one woman. Ms. Smith acknowledges that her views
about marriage may
not be popular in all quarters. But, she asserts, the First
Amendment’s Free
Speech Clause protects her from being compelled to speak what
she does not
believe. The Constitution, she insists, protects her right to
differ.
B
To clarify her rights, Ms. Smith filed a
lawsuit in federal district
court. In that suit, she sought an injunction to prevent the
State from forcing
her to create wedding websites celebrating marriages that defy
her beliefs.
To secure relief, Ms. Smith first had to
establish her
standing to sue. That required her to show “a credible threat”
existed that
Colorado would, in fact, seek to compel speech from her that she
did not wish
to produce.
Toward that end, Ms. Smith began by directing
the court to
the Colorado Anti-Discrimination Act (CADA). That law defines a
“public
accommodation” broadly to include almost every public-facing
business in the
State. In what some call its “Accommodation Clause,” the law
prohibits a public
accommodation from denying “the full and equal enjoyment” of its
goods and services
to any customer based on his race, creed, disability, sexual
orientation, or
other statutorily enumerated trait. Courts can order fines up to
$500 per
violation. Colorado Commission on Civil Rights can issue
cease-and desist
orders, and require violators to take various other “affirmative
action[s].”
In her lawsuit, Ms. Smith alleged that, if
she enters the wedding
website business to celebrate marriages she does endorse, she
faces a credible
threat that Colorado will seek to use CADA to compel her to
create websites
celebrating marriages she does not endorse.As evidence, Ms. Smith pointed to Colorado’s record of
past enforcement
actions under CADA, including one that worked its way to this
Court five years
ago.
To facilitate the district court’s resolution
of the merits
of her case, Ms. Smith and the State stipulated to a number of
facts: Ms. Smith
is “willing to work with all people regardless of
classifications such as race,
creed, sexual orientation, and gender,” and she “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.
Her belief that marriage is a union between one man and one
woman is a
sincerely held religious conviction. All of the graphic and
website design
services Ms.Smith provides are “expressive.”Just like the other services she provides, the wedding
websites Ms.
Smith plans to create “will be expressive in nature.”
…..Turning to the merits, however, the Tenth
Circuit held that
Ms. Smith was not entitled to the injunction she sought. The
court acknowledged
that Ms. Smith’s planned wedding websites qualify as “pure
speech” protected by
the First Amendment. As a result, the court reasoned, Colorado
had to satisfy
“strict scrutiny” before compelling speech from her that she did
not wish to
create. Under that standard, the court continued, the State had
to show both
that forcing Ms. Smith to create speech would serve a compelling
governmental
interest and that no less restrictive alternative exists to
secure that
interest. Ibid. Ultimately, a divided panel concluded that the
State had
carried these burdens. As the majority saw it, Colorado has a
compelling
interest in ensuring “equal access to publicly available goods
and services,”
and no option short of coercing speech from Ms. Smith can
satisfy that interest
because she plans to offer “unique services” that are, “by
definition,
unavailable elsewhere
We granted certiorari to review the Tenth
Circuit’s
disposition. 595 U. S. ___ (2022).
II
The framers designed the Free Speech Clause
of the First Amendment
to protect the “freedom to think as you will and to speak as you
think.” They
did so because they saw the freedom of speech “both as an end
and as a means.”
By allowing all views to flourish, the
framers understood,
we may test and improve our own thinking both as individuals and
as a Nation.
For all these reasons, “[i]f there is any fixed star in our
constitutional
constellation,” West Virginia Bd. of Ed. v. Barnette, it is the
principle that the
government may not interfere with “an uninhibited marketplace of
ideas.”
Generally, too, the government may not compel
a person to
speak its own preferred messages. Nor does it matter whether the
government
seeks to compel a person to speak its message when he would
prefer to remain
silent or to force an individual to include other ideas with his
own speech
that he would prefer not to include.
III
Applying these principles to this case, we
align ourselves with
much of the Tenth Circuit’s analysis. The Tenth Circuit held
that the wedding
websites Ms. Smith seeks to create qualify as “pure speech”
under this Court’s
precedents. We agree. A hundred years ago, Ms. Smith might have
furnished her
services using pen and paper. Those services are no less
protected speech today
because they are conveyed with a “voice that resonates farther
than it could
from any soapbox.”
We further agree with the Tenth Circuit that
the wedding websites
Ms. Smith seeks to create involve her speech. Ms. Smith intends
to “ve[t]” each
prospective project to determine whether it is one she is
willing to endorse.
She will consult with clients to discuss “their unique stories
as source
material.” And she will produce a final story for each couple
using her own
words and her own “original artwork.” Of course, Ms.Smith’s
speech may combine
with the couple’s in the final product. But for purposes of the
First Amendment
that changes nothing.
As surely as Ms. Smith seeks to engage in
protected First Amendment
speech, Colorado seeks to compel speech Ms.Smith does not wish
to provide. As
the Tenth Circuit observed, if Ms. Smith offers wedding websites
celebrating marriages
she endorses, the State intends to “forc[e her] to create custom
websites”
celebrating other marriages she does not.
We part ways with the Tenth Circuit only when
it comes to
the legal conclusions that follow. While that court thought
Colorado could
compel speech from Ms. Smith consistent with the Constitution,
our First
Amendment precedents teach otherwise.
In Barnette, this Court found impermissible
coercion when
West Virginia required schoolchildren to recite a pledge that
contravened their
convictions on threat of punishment or expulsion. Here, 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.
Consider what a contrary approach would mean.
Under Colorado’s
logic, the government may compel anyone who speaks for pay on a
given topic to
accept all commissions on that same topic—no matter the
underlying message—if
the topic somehow implicates a customer’s statutorily protected
trait.
Taken seriously, that principle would allow
the government to
force all manner of artists, speechwriters, and others whose
services involve
speech to speak what they do not believe on pain of penalty. The
government
could require “an unwilling Muslim movie director to make a film
with a Zionist
message,” or “an atheist muralist to accept a commission
celebrating
Evangelical zeal,” so long as they would make films or murals
for other members
of the public with different messages. Equally, the government
could force a
male website designer married to another man to design websites
for an
organization that advocates against same-sex marriage.
Consistent with all of this, Ms. Smith
herself recognizes
that Colorado and other States are generally free to apply their
public accommodations
laws, including their provisions protecting gay persons, to a
vast array of
businesses. At the same time, this Court has also recognized
that no public
accommodations law is immune from the demands of the
Constitution. In
particular, this Court has held, public accommodations statutes
can sweep too
broadly when deployed to compel speech.
IV
The parties agree that Ms.Smith “will gladly
create custom
graphics and websites for gay, lesbian, or bisexual clients or
for
organizations run by gay, lesbian, or bisexual persons so long
as the custom graphics
and websites” do not violate her beliefs. Ms. Smith stresses,
too, that she has
not and will not create expressions that defy any of her beliefs
for any
customer, whether that involves encouraging violence, demeaning
another person,
or promoting views inconsistent with her religious commitments.
The dissent labels the distinction between
status and
message “amusing” and “embarrassing.” But in doing so, the
dissent ignores a
fundamental feature of the Free Speech Clause. While it does not
protect
status-based discrimination unrelated to expression, generally
it does protect
a speaker’s right to control her own message—even when we may
disapprove of the
speaker’s motive or the message itself. The dissent’s derision
is no answer to
any of this. It ignores, too, the fact that Colorado itself has,
in other
contexts, distinguished status-based discrimination (forbidden)
from the right
of a speaker to control his own message (protected). Does the
dissent really
find all that amusing and embarrassing?
V
The dissent suggests (over and over again)
that any burden on
speech here is “incidental.” All despite the Tenth Circuit’s
finding that
Colorado intends to force Ms. Smith to convey a message she does
not believe with
the “very purpose” of “[e]liminating . . . ideas” that differ
from its own. Nor
does the dissent’s reimagination end there. It claims that, “for
the first time
in its history,” the Court “grants a business open to the
public” a “right to
refuse to serve members of a protected class.” Never mind that
we do no such
thing…
In this case, Colorado seeks to force an
individual to speak
in ways that align with its views but defy her conscience about
a matter of
major significance. In the past, other States have similarly
tested the First
Amendment’s boundaries by seeking to compel speech they thought
vital at the
time. But, as this Court has long held, the opportunity to think
for ourselves and
to express those thoughts freely is among our most cherished
liberties and part
of what keeps our Republic strong. Of course, abiding the
Constitution’s
commitment to the freedom of speech means all of us will
encounter ideas we
consider “unattractive,” “misguided, or even hurtful.” But
tolerance, not
coercion, is our Nation’s answer. The First Amendment envisions
the United
States as a rich and complex place where all persons are free to
think and
speak as they wish, not as the government demands. Because
Colorado seeks to
deny that promise, the judgment is