303 Creative Was About Compelled Speech, Not a License to Refuse Customers

Two sentences have been confused for three years. The first is: "A business may not refuse to serve a customer because of who the customer is." The second is: "The government may not force a person to say something she does not believe." Both are good law. They are different rules, and the case of 303 Creative LLC v. Elenis lives in the space between them.

Most of what has been said about the decision, by friends and enemies alike, ignores that space. Critics said the Court created a license to turn away gay customers. Some cheering supporters said it created a general right to refuse. Neither is what the opinion says. This post defines the terms, states the facts the way the parties stipulated them, walks through the holding, gives the dissent its due, and argues that the real rule is narrower than the headlines and wider than its critics admit. It protects speakers of every view.

Define the terms

Public accommodation law. A state statute that bars businesses open to the public from discriminating against customers on the basis of a protected trait such as race, religion, sex or sexual orientation. Colorado's is the Colorado Anti-Discrimination Act, or CADA. Such laws descend from the Civil Rights Act of 1964 and from older common-law rules that innkeepers and common carriers had to serve all comers.

Compelled speech. A government requirement that a person express a message. The First Amendment says Congress shall make no law "abridging the freedom of speech," and the Fourteenth Amendment applies that limit to the states. The Court has held for eighty years that freedom of speech includes the right not to speak.

Expressive product. Something a person makes whose purpose is to communicate a message, such as a speech, a painting, a film or a website with original text and graphics. The line between a product that is expressive and one that is merely useful is the center of the case.

The facts, as stipulated

The case is unusual because there was no dispute about the facts. The parties agreed on them. That is what makes it clean.

Lorie Smith owns 303 Creative LLC, a graphic design and website firm in Colorado. She wanted to expand into wedding websites. She planned to create original, customized pages telling each couple's story, with text and graphics, and she planned to put a statement on her own site that she would not design sites celebrating same-sex marriages, because of her religious beliefs about marriage. She stated that she would gladly work with any person, regardless of sexual orientation, in other contexts, and would design other content for anyone. Her objection was to the message, not to the customer.

Colorado's law, as the state read it, would forbid her statement and would require her to create a same-sex wedding website if she created wedding websites for opposite-sex couples. The statute included a "communication clause" that barred published notices that a business would deny services based on a protected trait. Colorado had previously used CADA against a baker who refused to make a same-sex wedding cake, a matter that reached the Court in 2018.

Smith had not yet been asked to design such a website. She sued in advance, a "pre-enforcement challenge," saying that CADA, as applied to her, violated the Free Speech Clause. The Tenth Circuit ruled against her. The parties stipulated that her websites would be "original, customized" works that were "expressive in nature," that she would be the one to create them, and that she would not discriminate against anyone as a customer. The Supreme Court took the case on the single question of free speech.

The decision

On June 30, 2023, the Court ruled for Smith, 6 to 3. Justice Gorsuch wrote the opinion. The reasoning has four steps, and I will number them because the logic is a chain.

1. Premise one: Smith's websites are speech. The stipulation said so. The designs communicate ideas, and the First Amendment protects the creation of speech.
2. Premise two: Colorado's law would compel her to speak in a way she does not wish to. If she creates websites celebrating opposite-sex marriage, the state would require her to create websites celebrating same-sex marriage. This is a government demand that she express a message she rejects.
3. Premise three: the Court's compelled speech cases forbid that. The decision draws on a line of cases. In West Virginia State Board of Education v. Barnette (1943), the Court struck down a rule requiring schoolchildren to salute the flag, and Justice Jackson wrote that no official, high or petty, can prescribe what is orthodox in politics, nationalism, religion or other matters of opinion. In Wooley v. Maynard (1977), the Court held that New Hampshire could not force a family to display the state motto "Live Free or Die" on its license plate. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), the Court held that Massachusetts could not use its public accommodation law to force the organizers of a St. Patrick's Day parade to include a group whose message they did not want to carry.
4. Premise four: Colorado's interest does not change the result. The state has a strong interest in ensuring that all people have access to goods and services. The Court said that interest cannot be pursued by forcing a speaker to alter her message. The state may not use its power to eliminate what it considers an unwelcome idea, even when the idea is one the state finds distasteful. The right to speak freely includes the right to say things others think are wrong.

The conclusion follows from the premises. The Court held that Colorado may not use CADA to compel Smith to create expressive designs that violate her beliefs.

Notice what the opinion was careful to say. It did not hold that a business can refuse to serve customers based on who they are. The Court affirmed that public accommodation laws are valid and that Colorado has a compelling interest in protecting access to the market. It said the law applied to a business like hers in many circumstances. It said that a company that sells goods to the public may not decline to sell them because of the customer's identity. The holding applies to the creation of original expressive content, where the government would be dictating the message.

The line between selling a product and creating speech

This is the question that matters most, and anyone who wants to understand the case must pay attention to it. Where does the line fall?

On one side are products that are not speech. A baker who sells a stock cupcake from the case is selling a product. A hotel that rents a room, a restaurant that serves a meal, a store that sells a ready-made item: none of these is creating a message. The law may require them to serve everyone. Newman v. Piggie Park Enterprises in 1968 rejected a restaurant owner's religious defense to the Civil Rights Act's ban on segregation in his barbecue restaurants, and nothing in 303 Creative disturbs that.

On the other side is the creation of something that carries a message. A speechwriter, a novelist, a painter who takes commissions, a filmmaker, a songwriter, and a web designer building a custom site that tells a couple's story. The government may not tell such a person what message to put on the page.

In between are hard cases, the custom cake, the photographer, the florist, the calligrapher. The Court did not draw the line for all of them. The fact that the case rested on stipulations means it settled the question for custom websites that are expressive, and left the others to be decided one at a time. The test, as I read the opinion, is whether the work is the creator's own expression and whether the state's demand would change what the creator says. If the answer to both is yes, the First Amendment applies.

I will state a hypothetical, and I label it as one. Picture a graphic designer who is gay and who has a firm policy against creating content for any group that campaigns against same-sex marriage. A customer asks her to design a website for such a group. Under Colorado's reading of its law, she might be required to do it, if she did similar work for other clients. Under 303 Creative, she cannot be forced to. The rule that protects the Christian web designer also protects the gay designer, the Muslim filmmaker and the atheist muralist. That is how a principle works. It cannot be a principle if it applies only to people you like.

The dissent, stated fairly

Justice Sotomayor, joined by Justices Kagan and Jackson, wrote a dissent that began with an alarming sentence: for the first time in its history, she said, the Court has held that a business open to the public has a constitutional right to refuse to serve members of a protected class. She argued that the law regulates conduct and not speech, and that discriminatory acts are not protected expression. She argued that public accommodation laws exist because the market, left to itself, had excluded people for generations, and that the Court's decision would open a door for businesses of all kinds to claim an expressive exemption. She warned that photographers and other businesses might claim that their work is expression, and that the logic would reach well past websites.

Those are fair concerns, and they should be taken as seriously as they are meant. The history she invokes, of people turned away from hotels and restaurants because of their race, is real and shameful, and public accommodation laws were the answer to it.

Here is the reply, point by point.

1. The decision does not touch the market in ordinary goods and services. A lunch counter, a hotel and a store are not speakers. The ruling protects the creation of original messages, and the Court was clear about the limit. The parade case, Hurley, was decided in 1995, and in the decades since, public accommodation laws have continued to function.
2. The slippery slope runs both ways. If the state can compel a web designer to write a message, it can compel a pastor's printer, a progressive speechwriter or a union's graphic designer to write messages they reject. The dissent's logic would give the government a power over speech that no one should want it to hold, and the party that holds it in one decade will not hold it in the next.
3. The stipulations cut against the dissent's hypotheticals. Because the facts were agreed, the Court could decide the case on them, and the majority answered that the dissent's examples about photographers and stationers did not match the stipulated facts.
4. Colorado's own history shows the stakes. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court ruled 7 to 2 for the baker, Jack Phillips, on narrow grounds, holding that the state's commission had shown hostility to his religious beliefs. The case left the broader free-speech question open, and 303 Creative answered it for websites. The principle runs in more than one direction.

What the case is not

Several misreadings need correcting.

• "The Court said businesses can discriminate." The Court said the opposite about ordinary sales. It said the law remains valid as to the sale of goods and services that are not the creation of speech.
• "It only helps conservatives." The principle protects speakers of every view, including those who would refuse to create content for causes they oppose. Compelled speech is wrong whoever is compelled.
• "It overruled public accommodation law." It did not. Colorado's law stands and still applies to almost everything it applied to before.
• "It was about religion." The decision rested on the Free Speech Clause. Smith's religious motive was the reason for her position, but the Court's holding does not require that a speaker have a religious motive. A designer who refuses a message on grounds of conscience or taste, or because she thinks it is false, stands on the same ground.

The Founding view

The Founders had a clear idea of what compelled speech meant, because they had lived under a regime of licensing and oaths. The great English fights over press licensing, which ended in 1695 when Parliament let the Licensing Act lapse, were fights over the power of the state to decide what could be published. The First Amendment was written by men who had seen what it was like to be forced to profess what they did not believe. Jefferson's Virginia Statute for Religious Freedom said that to compel a man to furnish contributions of money for the propagation of opinions that he disbelieves is sinful and tyrannical. The principle that a person cannot be forced to be the mouthpiece of the state's opinion is older than the Constitution.

Barnette put it into modern law at a time when it mattered most, in 1943, when the world was at war with regimes that demanded obedience of the mind. Justice Jackson's opinion, in the middle of the war, held that the point of the Bill of Rights was to put certain things beyond the reach of majorities and officials. That is the tradition that 303 Creative carries on.

For related reading, see Coach Kennedy's Prayer at Midfield and the End of the Lemon Test on the free exercise side of the same Amendment, Seven Myths About the Roberts Court, Tested Against Its Own Opinions on how the Court's decisions are reported, and How the Press Covers Supreme Court Decisions, and What the Stories Leave Out on why the coverage of cases like this one often says less than the opinion. The roots of the Court's method are in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen, and the Founders' view of conscience is touched on in Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not.

The case in brief

1. Two rules are both good law: a business open to the public may not turn customers away because of who they are, and the government may not force a person to speak a message she rejects.
2. 303 Creative v. Elenis (2023) held, on stipulated facts, that Colorado cannot use its public accommodation law to compel a web designer to create original expressive websites that violate her beliefs.
3. The ruling rests on Barnette, Wooley and Hurley and applies to the creation of speech, not to the sale of ordinary goods and services, which public accommodation laws still cover.
4. Sotomayor's dissent raised real concerns about the reach of the rule, and the answer is that the line between product and speech holds and that a power to compel speech would belong to whoever governs next.
5. The principle protects speakers of every view, which is how you can tell it is a principle.

What you can do: read the First Amendment's speech clause, then read your own state's public accommodation statute on your legislature's website and find out which traits it protects.