Supreme Court of the United States: While deliberating over the instant case wherein a Colorado based graphic designer intending to expand her services to include creation of wedding websites, but only for marriages that align to her personal beliefs vis-à-vis the institution of marriage, came before the SCOTUS seeking clarification of her rights; the Court with a ratio of 6:3 held that First Amendment of the US Constitution prohibits Colorado from forcing the website designer to create expressive designs speaking messages with which the designer disagrees. Relying on a plethora of SCOTUS precedents, the Court stated that First Amendment protects an individual’s right to speak their mind regardless of whether the government considers his speech sensible and well intentioned or deeply misguided.
Background: The petitioner, a Colorado based graphic designer, offers website and graphic design, marketing advice, and social media management services through her business, 303 Creative LLC. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As per her vision, her websites will provide couples with text, graphic arts, and videos to celebrate” and convey the details of a couple’s unique love story.
State of Colorado has enacted the Colorado Anti-Discrimination Act (CADA) which forbids businesses from engaging in discrimination when they sell goods and services to the public. “Accommodation Clause,” of CADA 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. Either state officials or private citizens may bring actions to enforce the law and a variety of penalties can follow.
The petitioner has laid the groundwork for her future service expansion; but her cause of concern was this Anti- Discrimination Act, which worried her that once she decides to carry out her plans, Colorado will force her to express views with which she disagrees, using its Anti-Discrimination Law. “The petitioner 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”.
The petitioner acknowledged that her view of marriage may not be popular within certain quarters, but US Constitution’s First Amendment protects her from being compelled to speak what she does not believe, and it also protects her right to differ. Therefore, to clarify her rights, the petitioner took the legal route. The District Court and the Court of Appeals (10th Circuit) held that the petitioner was not entitled to any injunction. Thus, she knocked the doors of the SCOTUS.
Court’s Assessment (Majority opinion): The majority opinion of the Court was delivered by Neil Gorsuch, J.*, who was joined by John Roberts, CJ., and Thomas Clarence, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett, JJ.
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The Court stated that 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”. It was observed that SCOTUS had heard several cases in the past where governments had sought to test the foundational principles of First Amendment where it was pointed out that First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible or deeply misguided.
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The majority agreed with the assessment of the 10th Circuit Court of Appeals, which had stated that the wedding websites that the petitioner seeks to create, qualify as pure speech protected by the First Amendment. The majority reasoned that that the petitioner’s intended websites will express and communicate ideas, namely, those that “celebrate and promote the couple’s wedding and unique love story” and those that “celebrate and promote” what petitioner understands to be a marriage. Speech conveyed over the internet, like all other manner of speech, qualifies for the First Amendment’s protections.
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Taking note of the relevant precedents, the majority noted that Colorado seeks to put the petitioner in a choice where if she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in remedial training, filing periodic compliance reports, and paying monetary fines. That is an impermissible abridgement of the First Amendment’s right to speak freely. “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 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 Court’s precedents recognize the First Amendment tolerates none of that”.
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Noting that public accommodations laws “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments”, the majority stated that over time, governments in America have expanded public accommodations laws in notable ways. “Statutes like CADA grow from non-discrimination rules the common law sometimes imposed on common carriers and places of traditional public accommodation like hotels and restaurants”. The Court further stated that States may protect gay persons, just as they can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. However, at the same time, SCOTUS has also long recognized that no public accommodations law is immune from the demands of the Constitution and has held in the past that public accommodations statutes can sweep too broadly when deployed to compel speech.
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Taking note of argument advanced by State of Colorado that the petitioner must simply provide the same commercial product to all, which she can do by repurposing websites celebrating marriages she does endorse for marriages she does not, the Court opined that Colorado’s argument rests on a belief that this case does not implicate pure speech, but rather the sale of an ordinary commercial product, and that any burden on petitioner’s speech is purely incidental. “On the State’s telling, then, speech more or less vanishes from the picture—and, with it, any need for First Amendment scrutiny”. Colorado’s alternative theory, however, does not sit easily with its stipulation that petitioner does notseek to sell an ordinary commercial good but intends to create “customized and tailored” expressive speech for each couple “to celebrate and promote the couple’s wedding and unique love story.” Colorado seeks to compel just the sort of speech that it tacitly concedes lies beyond its reach.
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The majority also took note of Colorado’s contention that petitioner offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.” However, the Court pointed out that many of the world’s great works of literature and art were created with an expectation of compensation; and speakers do not shed their First Amendment protections by employing the corporate form to disseminate their speech.
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Regarding the State’s arguments on the petitioner’s refusal to offer services as she objects to the “protected characteristics” of certain customers, the Court termed them as stipulations and stated that the petitioner will gladly conduct business with those having protected characteristics so long as the custom graphics and websites she is asked to create do not violate her beliefs.
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Based on the afore stated reasonings, the majority stated that the First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy. 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. But abiding the Constitution’s commitment to the freedom of speech means all will encounter ideas that are mis-guided, or even hurtful. “Consistent with the First Amendment, the Nation’s answer is tolerance, not coercion”.
[303 Creative LL.C v. Elenis, 2023 SCC OnLine US SC 51, decided on 30-06-2023]
*Majority judgment was delivered by Justice Neil Gorsuch
