Facts
- 303 Creative LLC, owned by Lorie Smith, provides custom graphic design and website services in Colorado.
- Colorado’s Anti-Discrimination Act (CADA) requires public accommodations to provide full and equal enjoyment of goods and services without discrimination based on protected traits, including sexual orientation, and restricts certain communications indicating refusals.
- The parties stipulated that Smith’s custom websites are expressive, original, and tailored, and that her creative choices shape the overall message conveyed.
- Smith stipulated she is willing to work with all people, including LGBTQ clients, but will not create content that conflicts with her sincerely held belief that marriage is between one man and one woman.
- Smith sought to expand into custom wedding websites but feared Colorado would apply CADA to require her to create websites celebrating same-sex marriages and to restrict her ability to state the types of weddings she would celebrate.
Issues
- Whether applying a public-accommodations law to compel an expressive professional to create or refrain from creating speech violates the First Amendment’s Free Speech Clause.
- Whether Colorado may require a web designer to create custom wedding websites celebrating same-sex marriages when the designer objects to that message.
Decision
- The Supreme Court reversed the Tenth Circuit in a 6–3 decision authored by Justice Gorsuch.
- The Court held that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs conveying messages with which the designer disagrees.
- On the stipulated record, Smith’s custom wedding websites constituted protected expressive activity, and Colorado’s application of CADA would compel speech.
- Because the application compelled speech based on the message conveyed, it triggered strict scrutiny, which Colorado failed to satisfy as applied.
- The dissent would have treated CADA as regulating discriminatory commercial conduct to ensure equal access to goods and services and argued the refusal was status-based discrimination.
Legal Principles
- The First Amendment protects both the right to speak and the right to refrain from speaking; the government may not compel a person to express the government’s preferred message.
- When a law is applied to require creation of expression conveying a disfavored or contested message, it operates as a content- and viewpoint-based compulsion and is subject to strict scrutiny.
- Public-accommodations laws may not be enforced in a manner that forces an artist or other speaker to create speech the speaker does not believe, even when the speaker offers services to the public.
- A provider’s willingness to serve customers generally, coupled with an objection limited to specific requested messages, supports treating the dispute as compelled speech rather than a categorical refusal of service based on protected status.
Conclusion
The Court held that Colorado cannot apply its public-accommodations law to compel a web designer to create custom, expressive wedding websites celebrating same-sex marriages, because the First Amendment bars the state from forcing speakers to convey messages they reject.