The U.S. Supreme Court Explains a Business’s Right to Free Speech

We always try to keep up with the decisions of the U.S. Supreme Court that could affect folks in the business world.  That includes cases about the right to free speech in the United States, as was discussed in 303 Creative LLC v. Elenis.  This case received a lot of national attention for its perceived impact on the LGBTQ+ community.

The Colorado Anti-Discrimination Act (CADA) prohibits all public accommodations from denying “the full and equal enjoyment” of its goods and services to any customer based on its race, creed, disability, sexual orientation, or other protected trait. Many states have similarly-worded laws, like Minnesota. The owner of 303 Creative, a graphic design business, was looking to expand her business into the design of wedding websites, but was not willing to “produce content that ‘contradicts biblical truth’ regardless of who orders it.”  One of her beliefs was that marriage is a union between one man and one woman, so she was unwilling to use her form of expression, i.e. her website design skills, to promote beliefs contrary to her own.  The Supreme Court was called upon to determine whether the CADA illegally infringed on 303’s right to Free Expression in prohibiting it from declining certain work based on her beliefs after both the district court and Tenth Circuit ruled against 303.

To begin its discussion, the Court referred back to several decisions where state laws were crafted to make places of public accommodation more inclusive.  The Court found that the speech here seeking protection, 303’s website design, was actual speech that fell under the protection of the First Amendment.  Due to the designer’s creative input, it also found that the creation of the websites was the company owner’s speech, rather than simply that of its clients, and that Colorado was actually compelling 303 to embrace certain viewpoints with which she did not agree.

Colorado argued that in the past the government has been allowed to force organizations receiving federal funds to allow armed forces recruiters to both have a table for recruiting and advertise their presence.  The Court reasoned the compelled speech in that situation was “purely factual and uncontroversial information,” while this case involved the state forcing an individual to “utter what is not in [her] mind” about a question of political and religious significance.

The Court reversed the decisions of the lower courts, and barred Colorado from taking action against the business if she refused service under stipulated facts.

The actual reach of this case is currently open to debate.  Some commentators feel this case, while a continuation of the Court’s protection of businesses, seems to open the door fairly wide for groups to deny access to individuals of varying backgrounds with whom they do not agree.  On the other hand, the facts of the case were quite limited and many of the factual issues that would typically be litigated (and may have impacted the outcome) were stipulated between the parties.  In certain limited circumstances that implicate the first amendment, such as the use actual creative and design processes, businesses should feel confident about their abilities to refuse work for groups with which they do not agree based upon certain limited factors.  However, if you are considering following the steps taken by 303 in this case, we would meeting with an attorney so you know what kind of litigation you might be getting into.  If you, or your organization need assistance in defending your rights, contact Wiley Reber Law, for legal advice that works.