SUPREME COURT OF THE UNITED STATES

303 CREATIVE LLC v. ELENIS

600 U.S. _____ (2023)

 (Syllabus Edited By Author.)

Lorie Smith wants to expand her graphic design business, 303 Creative LLC, to include services for couples seeking wedding websites. But Ms. Smith worries that Colorado will use the Colorado Anti-Discrimination Act to compel her—in violation of the First Amendment—to create websites celebrating marriages she does not endorse. To clarify her rights, Ms. Smith filed a lawsuit seeking an injunction to prevent the State from forcing her to create websites celebrating marriages that defy her belief that marriage should be reserved to unions between one man and one woman.

CADA prohibits all “public accommodations” 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. Colo. Rev. Stat. §24–34–601(2)(a). The law defines “public accommodation” broadly to include almost every public-facing business in the State. §24–34–601(1). Either state officials or private citizens may bring actions to enforce the law. §§24–34–306, 24–34–602(1). And a variety of penalties can follow any violation.

Before the district court, Ms. Smith and the State stipulated to a number of facts: Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender” and “will gladly create custom graphics and websites” for clients of any sexual orientation; she will not produce content that “contradicts biblical truth” regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are “expressive” and her “original, customized” creations “contribut[e] to the overall message” her business conveys “through the websites” it creates; the wedding websites she plans to create “will be expressive in nature,” will be “customized and tailored” through close collaboration with individual couples, and will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage; viewers of Ms. Smith’s websites “will know that the websites are her original artwork;” and “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.”

Ultimately, the district court held that Ms. Smith was not entitled to the injunction she sought, and the Tenth Circuit affirmed.

Held: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.

(a) 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.” Boy Scouts of America v. Dale, 530 U.S. 640, 660–661 (internal quotation marks omitted). The freedom to speak is among our inalienable rights. The freedom of thought and speech is “indispensable to the discovery and spread of political truth.” Whitney v. California, 274 U.S. 357, 375 (Brandeis, J., concurring). For these reasons, “[i]f there is any fixed star in our constitutional constellation,” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, it is the principle that the government may not interfere with “an uninhibited marketplace of ideas,” McCullen v. Coakley, 573 U.S. 464, 476 (internal quotation marks omitted).

This Court has previously faced cases where governments have sought to test these foundational principles. In Barnette, the Court held that the State of West Virginia’s efforts to compel schoolchildren to salute the Nation’s flag and recite the Pledge of Allegiance “invad[ed] the sphere of intellect and spirit which it is the purpose of the First Amendment . . . to reserve from all official control.” 319 U. S., at 642. State authorities had “transcend[ed] constitutional limitations on their powers.” 319 U. S., at 642. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, the Court held that Massachusetts’s public accommodations statute could not be used to force veterans organizing a parade in Boston to include a group of gay, lesbian, and bisexual individuals because the parade was protected speech, and requiring the veterans to include voices they wished to exclude would impermissibly require them to “alter the expressive content of their parade.” Id., at 572–573. And in Boy Scouts of America v. Dale, when the Boy Scouts sought to exclude assistant scoutmaster James Dale from membership after learning he was gay, the Court held the Boy Scouts to be “an expressive association” entitled to First Amendment protection. 530 U. S., at 656. The Court found that forcing the Scouts to include Mr. Dale would undoubtedly “interfere with [its] choice not to propound a point of view contrary to its beliefs.” Id., at 654.

These cases illustrate that the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply “misguided,” Hurley, 515 U. S., at 574, and likely to cause “anguish” or “incalculable grief,” Snyder v. Phelps, 562 U.S. 443, 456. Generally, too, the government may not compel a person to speak its own preferred messages. See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505.

(b) Applying these principles to the parties’ stipulated facts, the Court agrees with the Tenth Circuit that the wedding websites Ms. Smith seeks to create qualify as pure speech protected by the First Amendment under this Court’s precedents. Ms. Smith’s websites will express and communicate ideas—namely, those that “celebrate and promote the couple’s wedding and unique love story” and those that “celebrat[e] and promot[e]” what Ms. Smith understands to be a marriage. Speech conveyed over the internet, like all other manner of speech, qualifies for the First Amendment’s protections. And the Court agrees with the Tenth Circuit that the wedding websites Ms. Smith seeks to create involve her speech, a conclusion supported by the parties’ stipulations, including that Ms. Smith intends to produce a final story for each couple using her own words and original artwork. While Ms. Smith’s speech may combine with the couple’s in a final product, an individual “does not forfeit constitutional protection simply by combining multifarious voices” in a single communication. Hurley, 515 U. S., at 569.

Ms. Smith seeks to engage in protected First Amendment speech; Colorado seeks to compel speech she does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to compel her to create custom websites celebrating other marriages she does not. 6 F. 4th 1160, 1178. Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 633, 642. Indeed, the Tenth Circuit recognized that the coercive “[e]liminati[on]” of dissenting ideas about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith. 6 F. 4th, at 1178. But while the Tenth Circuit thought that Colorado could compel speech from Ms. Smith consistent with the Constitution, this Court’s First Amendment precedents teach otherwise. In Hurley, Dale, and Barnette, the Court found that governments impermissibly compelled speech in violation of the First Amendment when they tried to force speakers to accept a message with which they disagreed. Here, Colorado seeks to put Ms. Smith to a similar choice. 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. Hurley, 515 U. S., at 574.

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. 6 F. 4th, at 1199 (Tymkovich, C. J., dissenting). 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. To be sure, public accommodations laws play a vital role in realizing the civil rights of all Americans, and governments in this country have a “compelling interest” in eliminating discrimination in places of public accommodation. Roberts v. United States Jaycees, 468 U.S. 609, 628. This Court has recognized that public accommodations laws “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 250 (internal quotation marks omitted). Over time, governments in this country have expanded public accommodations laws in notable ways. Statutes like Colorado’s grow from nondiscrimination rules the common law sometimes imposed on common carriers and places of traditional public accommodation like hotels and restaurants. Dale, 530 U. S., at 656–657. Often, these enterprises exercised something like monopoly power or hosted or transported others or their belongings. See, e.g., Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 437. Importantly, States have also expanded their laws to prohibit more forms of discrimination. Today, for example, approximately half the States have laws like Colorado’s that expressly prohibit discrimination on the basis of sexual orientation. The Court has recognized this is “unexceptional.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___. 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. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.” Ibid. At the same time, this Court has also long recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech. See, e.g., Hurley, 515 U. S., at 571, 578; Dale, 530 U. S., at 659. As in those cases, when Colorado’s public accommodations law and the Constitution collide, there can be no question which must prevail. U. S. Const. Art. VI, §2.

As the Tenth Circuit saw it, Colorado has a compelling interest in ensuring “equal access to publicly available goods and services,” and no option short of coercing speech from Ms. Smith can satisfy that interest because she plans to offer “unique services” that are, “by definition, unavailable elsewhere.” 6 F. 4th, at 1179–1180 (internal quotation marks omitted). In some sense, of course, her voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes. The speaker in Hurley had an “enviable” outlet for speech, and the Boy Scouts in Dale offered an arguably unique experience, but in both cases this Court held that the State could not use its public accommodations statute to deny a speaker the right “to choose the content of his own message.” Hurley, 515 U. S., at 573; see Dale, 530 U. S., at 650–656. A rule otherwise would conscript any unique voice to disseminate the government’s preferred messages in violation of the First Amendment.

(c) Colorado now seems to acknowledge that the First Amendment does prohibit it from coercing Ms. Smith to create websites expressing any message with which she disagrees. Alternatively, Colorado contends, Ms. Smith 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. Colorado’s theory 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 Ms. Smith’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 Ms. Smith does not seek 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.

The State stresses that Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.” But 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. Colorado urges the Court to look at the reason Ms. Smith refuses to offer the speech it seeks to compel, and it claims that the reason is that she objects to the “protected characteristics” of certain customers. But the parties’ stipulations state, to the contrary, that Ms. Smith 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. Ms. Smith stresses that she does not create expressions that defy any of her beliefs for any customer, whether that involves encouraging violence, demeaning another person, or promoting views inconsistent with her religious commitments.

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. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But abiding the Constitution’s commitment to the freedom of speech means all will encounter ideas that are “misguided, or even hurtful.” Hurley, 515 U. S., at 574. Consistent with the First Amendment, the Nation’s answer is tolerance, not coercion. 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. Colorado cannot deny that promise consistent with the First Amendment.

6 F. 4th 1160, reversed.

Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Kavanaugh, and Barrett, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Kagan and Jackson, JJ., joined.