The Supreme Court ruled that Colorado can’t force a website designer to create designs that go against their beliefs, protecting free speech rights. This decision has implications for artists and creative producers who have reasons to decline certain projects.
Today the Supreme Court ruled that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs that speak messages with which the designer disagrees.
The case involved a graphic designer, Lorie Smith, who wanted to run a business making wedding websites for heterosexual couples only, in keeping with her religious beliefs. She was concerned the state of Colorado would use the state’s anti-discrimination statute to punish her, so she sued before the issue actually arose. However, the state responded to the lawsuit stating that yes, indeed, she would be in trouble if she opened her business, so that made the decision “ripe enough” (or actually in controversy) for the lower courts and, ultimately, the Supreme Court.
Because the Free Exercise Clause has been watered down as it applies to the states in Employment Division v. Smith (1990), this was captioned as a Free Speech case, and the fact that her reasoning was religious did not affect the outcome. This means that the result will apply to any artist who has free speech reasons not to do a particular work, whether or not they are religious reasons.
In this case, Smith had indicated she’d do other types of work for anybody who asked for it, but she was particularly reluctant to create a celebratory work for a wedding that she felt offended her morals. In a larger sense, this would protect a wide range of creative producers who perhaps do not want to create work for a religious or political group, regardless of where they fall on the political spectrum.
The 6-3 decision in 303 Creative LLC v. Elenis (21-476) is not really a surprise to court watchers who had predicted that the Court would be hard-pressed to say that a state could force anyone to do a particular creative work.
Decision author Justice Gorsuch said, “[T]olerance, 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.”
This is the latest in a string of wedding-service cases, and will likely reverberate down the line as it applies to more topics. We will have more analysis as time goes along, but at this point, the impression is that this will apply mostly to custom-ordered creative “speech” items and not categorical denials from businesses that sell standard items or services to everyone without creative work.
Illustration by Midjourney