During the 2022-23 term, the Supreme Court will consider a case that raises this issue: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
Of all the forms of free speech, perhaps artistic expression is one of the most protected. The courts have been reluctant to define “art,” which in layperson terms is usually “in the eye of the beholder.” If the courts have become involved, it usually consists of a dispute over intellectual property such as copyright or trademark.
What is the Case About?
Sometime during the term ending in June 2023, the U.S. Supreme Court will hear oral arguments in 303 Creative LLC v. Elenis. Lorie Smith is an artist and web designer who does a variety of project types, and because of her religious beliefs, will only create wedding websites for couples consisting of one man and one woman. She wants to put a statement on her website that explains that she will only make websites consistent with her religious belief. But she believes that the Colorado Anti-Discrimination Act (CADA) says that she must create websites violating her religious beliefs and that she cannot explain why she will not create such websites. She says that she will make websites for LGBTQ people but will not create artwork that promotes or celebrates same-sex marriages.
The state of Colorado refused her request to put the disclaimer on her website, and she sued for declaratory relief. This means that even though no aggrieved same-sex couple has sued her, she wants the courts to recognize that she has a religious exemption from this qualification. The matter went all the way to the Tenth Circuit Court of Appeals, where she lost. According to the Tenth Circuit, if she is going to make wedding websites at all, she cannot discriminate against same-sex couples by refusing to make websites for them.
The Question: Can a State Compel an Artist to Speak or Stay Silent?
The Supreme Court will not hear Smith’s claim that she has a free exercise of religion right to refuse the work and instead focuses on the free speech clause. The specific question the Court will ask here is:
“Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment?”
The Supreme Court addressed a similar fact pattern in Masterpiece Cakeshop v. Colorado Civil Rights Comm’n (2018). In that case, Jack Phillips, the owner of the cake shop, refused on religious grounds to decorate a cake for a same-sex marriage recognition ceremony. Rather than decide whether the cake decorator had a free exercise right, the Court ruled 7-2 that the Colorado commission had not been “neutral” when it dealt with the decorator’s religion in a hostile manner. In so doing, the Court cleared the matter off the docket and avoided getting into the troubling intersection of anti-discrimination laws and the right to free exercise of religion.
In contrast, 303 Creative LLC v. Elenis will provide no such opportunity to punt the ball based on some lower-level procedural defect because the case was filed seeking declaratory relief before any actual dispute arose.
The Tenth Circuit (the last level below the Supreme Court) found against her and said that CADA is “narrowly tailored” to the state’s “compelling interest” in making sure that everyone can benefit from Smith’s art and that the law prohibits her from explaining that she will not participate in that kind of creative expression.
On this issue, the Tenth Circuit disagreed with the Eighth and Eleventh Circuits and the Arizona Supreme Court, who had all ruled for the freedom of artists to choose the subject matter that they can be commissioned to communicate.
While her attorneys argued that CADA allowed for exemptions other than religious exemptions, the Court kept its focus narrowed on the free speech implications of the case, thus avoiding a situation in which Emp. Division v. Smith, and consequently, CADA could be overturned.
Parallel Claims of Religious and Sexual Minorities
When discussing issues of religious rights versus the rights of sexual minorities, some have the impulse to downplay or delegitimize whoever is on the other side of the debate. Before we get too much further, it might be helpful to recognize the danger of marginalization of one side, which can completely derail progress, and develop a general framework of understanding so that the discussion can be held in good faith.
Douglas Laycock, a well-known Constitutional scholar, discussed the “wedding vendor” cases (i.e., bakers, florists, and photographers, among others) in a 2018 article in the Harvard Journal of Law and Public Policy and described the scope of the issue that these cases raise.
“Same-sex civil marriage is a great advance for human liberty, but the gain for human liberty will be severely compromised if same-sex couples now force religious dissenters to violate their conscience in the same way that those dissenters when they had the power to do so, forced same-sex couples to hide in the closet…. We could protect both religious minorities and sexual minorities if we were serious about civil liberties. They make essentially parallel claims on the larger society.”
Laycock notes five similarities between same-sex couples and committed religious believers.
- First, both “argue that some aspects of human identity are so fundamental that they should be left to each individual, free of all nonessential regulation, even when manifested in conduct.”
- Second, neither believe that they can change their religious or sexual orientation “by any act of will.”
- Third, both “face the argument that their conduct is separable from any claim of protected legal rights, and thus subject to regulation with few limits.”
- Fourth, both “seek to live out their identities in ways that are publicly visible and socially acknowledged.”
- Fifth, both “face the problem that what they experience as among the highest virtues is condemned by others as a grave evil.”
Most readers may sympathize with one or the other of these sides of the debate. But to resolve the issue, as Laycock concludes, is “a matter of tolerance and political will.”
See Douglas Laycock, The Wedding-Vendor Cases, 41 Harv. J.L. & Pub. Pol’y 49 (2018) at 60.
Are Websites Art?
Many arguments against Smith’s position claim that graphic design is not really artistic expression but simply a service, like fixing the plumbing in a house or installing car tires. But there are key distinctions between providing neutral services and customized artwork.
There’s long been tension between “fine art” and “commercial art.” In a major copyright case, the Court did find that advertisements were protected by copyright, meaning that they were art in Bleistein v. Donaldson Lithographing Co. (1903). In Bleistein, the owner of a traveling circus hired George Bleistein to design promotional posters. When the circus owner ran out of posters, he went to one of Bleistein’s competitors to make copies of the posters. Bleistein sued his competitor for copyright infringement.
Bleistein’s competitor replied that they were “mere advertising” and that they were free to copy them. The lower court had agreed: “The court cannot bring its mind to yield to the conclusion that such tawdry pictures as these were ever meant to be given the enormous protection of not only the exclusive right to print them but the additional protection of a penalty of a dollar each for reprints of them.”
The lower court said, “As previously stated, they are neither ‘pictorial illustrations’ nor ‘works connected with the fine arts within the meaning of [copyright law.].”
The Supreme Court disagreed and found that advertising was protected by copyright. Justice Oliver Wendell Holmes wrote, “It is settled that the words ‘authors’ and ‘writings,’ in this section, are not confined to literary writers and their works, but include, among others, designers, engravers, and lithographers, as well as photographers.”
Had wedding websites been around in 1903, Justice Holmes would have likely found that they were protected by copyright law.
Why This is a Free Speech Case and Not a Free Exercise Case
The underlying question in 303 Creative v Elenis (Docket No. 21-476) is whether a web designer is an artist and, if so, whether the government can compel the artist to create works that the artist does not want to make.
The free exercise clause of the First Amendment has been through some twists and turns since it was first drafted. Originally, it meant that the Federal Government could not interfere with a religious practice of an individual. Then, after the Bill of Rights was applied to the states after the Civil War via the 14th Amendment, states could not interfere either.
But in 1990, the Supreme Court decided that overturning a state law to allow people who had been fired for using peyote for religious reasons would be a bridge too far. After all, if you let some people smoke peyote for religious reasons, then people would do all kinds of things and label it “religion.” So the Court decimated the free exercise clause in Employment Division v. Smith (1990) and ruled that instead of requiring a state to pass the strict scrutiny level of judicial review when taking away religious freedoms, the state would have to prove that the law wasn’t aimed at their religious practice and applied equally to everyone. Since the state of Oregon didn’t enact its anti-drug law to stop religious use, and it applied to everyone, then the state’s law trumped the religious practice of the Native Americans who had asserted that their religious rights were being infringed.
Ever since 1990, people who have asserted a free exercise of religion claim have either had to prove that the state had aimed a law at their religion or attached their free exercise claim to some other right that enjoys strict scrutiny.
In the case of the web designer, it’s pretty clear that the non-discrimination policy didn’t target the designer’s religion, so rather than try to fight through the thicket of free exercise, the Court has framed the question as a free speech issue.
Should the Court Affirm the Idea that Artists Can Be Compelled to Create Art They Disagree With?
Whether a graphic designer is an artist has been answered in the affirmative for many years. The high brow distinction between fine art and “commercial art” sought by the dissent in Bleistein is simply unworkable. Art encompasses various commercial and “fine art” specialties. Commercial art design is a fixture of college visual art programs.
303 Creative https://303creative.com/ is not a piece of software or an online fill-in-the-blank website generator. They are engaged in planning, content management, and writing website copy and custom graphic design.
While cake design may be a specialized art, as any recent reality cake design shows demonstrate, graphic design and copywriting for websites take this a step further by requiring design and verbal messaging that endorse the commissioned message. Creating a quality art-based product requires extensive communication between the designer and the client.
Commissioning artwork can be fraught with issues that arise during the process. That is why artists and clients must be selective at the outset, regardless of the subject matter. For instance, a customer may pay a deposit at the beginning, pay again in the middle, and again on delivery with quality assured throughout the process. One artist told the Huffington Post in an article about the commissioning process that he asks for one-third at the beginning and two-thirds at the end because if the customer does not like the work, they don’t have to accept it. The article notes, however, that “[t]o protect himself from possible rejections,” the artist stated, “’ I won’t do a painting on commission that I wouldn’t do anyway.’”
For the state to claim that an artist must create work under protest that she may not otherwise create just because of the classification of the potential client creates an untenable artistic situation that will not end well for either.
This is not a neutral service that does not involve particularized care, for instance, a mechanic refusing to work on a car or a plumber refusing to fix the sink of a house belonging to a same-sex couple for religious reasons.
A few years ago, when Android and iPhone apps were becoming popular, we considered hiring a firm to create a ReligiousLiberty.TV app. I approached a designer who had done fantastic work for other clients, and he took down our information to bid for the job. After he reviewed our website, he apologized and informed us that he could not create the app because he disagreed with our religious perspective. I suppose we could have sued him for religious discrimination or argued with him about why he should put the religious context aside and create the app anyway, and he may have done so, but I did not want to put him in the position of creating something artistic (graphics, design work, coding, text, and so on.) that would make him miserable, especially if I made him do so under protest. In fact, I appreciated his willingness to let me know upfront rather than have to contend with what might have been a half-hearted effort. In short, I respected his right not to have to express something that would violate his conscience.
Case Law on Free Speech and the Right to Refuse
Free speech is equal parts the right to speak and the right to remain silent. This right to silence extends beyond the Fifth Amendment right not to self-incriminate. Even the Geneva convention allows prisoners of war to remain silent, giving only their name, rank, and serial number. There may be commercial impacts from remaining silent, such as the loss of business if a designer refuses a project, but there is no case law that would support the idea that a person must say something, much less complete an entire artistic project under threat that the government will fine them or even take away their business.
The amicus brief filed by the United States Conference of Catholic Bishops, Colorado Catholic Conference, The General Council of the Assemblies of God, the General Conference of Seventh-day Adventists, et al. in support of the web designer has provided a helpful listing of Supreme Court compelled speech cases beginning at page 156.
In Wooley v. Maynard (1977), the Court upheld the right of a Jehovah’s Witness to cover the New Hampshire state motto, “live free or die,” on his license plate. The Court said the right to free speech “protects the right of individuals to hold a point of view different from the majority and to refuse to foster … an idea they find morally objectionable.”
In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), the Court unanimously upheld the right of the organizers of Boston’s St. Patrick’s Day Parade to exclude a group because applying the public accommodations law would have violated “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.”
In NIFLA v. Becerra (2018), the Court held that a California requirement that pro-life pregnancy crisis centers provide information to women about how they could obtain state-subsidized abortions violated the “fundamental principle that governments have no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
Commissioned Works Are Expressive Activity Protected by the First Amendment
An amicus brief filed by “Creative Professionals” writes on behalf of neither party but provides an interesting outline of other cases involving artists who refused commissions. The brief discusses in detail several times when artists have refused to create works that would violate their beliefs:
- Cyndol McNeil declined to design a cake with a message she felt was demeaning to the LGBTQ community and was subject to a civil rights complaint
- Sabin Brock would not create tattoo designs that are contrary to his religious beliefs.
- Erum Rizvi photographs weddings for clients of all cultural backgrounds but selects commissions that best align with her artistic vision and expressive aims.
- Maureen Mullarkey is a writer, artist, and art critic who is selective in her own work and who has herself experienced the denial of custom work on the basis of religion.
The Creative Professionals brief does not ask for a particular outcome in the case but does ask that, no matter how the Court rules, the decision should make it clear “that creative professionals who create commissioned works are engaged in expressive activity and are entitled to the same treatment under the First Amendment that is afforded to other types of expressive speech and activities.”
A brief by “First Amendment Scholars” points out that “as speech becomes more unique, First Amendment protection increases rather than decreases.” It states that “the First Amendment exists to make sure that the state may not use the machinery of government to compel uniformity of opinion.” The brief cites Justice Kennedy’s concurring opinion in Becerra, “’ Governments must not be allowed to force persons to express a message contrary to their deepest convictions.’”
The odds favor the Supreme Court overturning the Tenth Circuit opinion, perhaps by a 7-2 majority. This is because the Court has valued the independence of artists and artistic expression as a component of free speech and recently stood strongly against attempts to compel speech.
The decision will likely closely follow the dicta in NIFLA v. Becerra (2018), when the Court described the “fundamental principle that governments have no power to restrict expression because of its message, its ideas, its subject matter, or its content.”’
What the Court’s decision will not do is act as a peacemaker to cure the rift between those with incompatible sexual and religious views. To do so, as Professor Laycock notes above, will be “a matter of tolerance and political will.”