303 Creative: Can Laws Force You To Express Views You Disagree With?

In 303 Creative et al. v. Elenis et al. (2023), the Supreme Court of the United States held that Colorado could not force an individual to create expressive designs conveying messages she did not endorse. The Court found that, under the First Amendment’s Free Speech Clause, Colorado could not use the Colorado Anti-Discrimination Act to compel Smith to create expressive designs conveying messages she did not endorse.

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Background: Masterpiece Cakeshop and What It Left Unresolved

States pass anti-discrimination laws, including public accommodations laws, to protect people with protected characteristics from being denied equal access to goods and services. At the same time, the First Amendment protects the right to speak — and the right to stay silent. That tension came to the forefront in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).

In that case, a baker had declined to make a wedding cake for a same-sex couple. The Court issued a narrow outcome, ruling for the baker based on the civil rights commission’s showing of religious hostility, not free speech merits.

The Court’s deliberately narrow ruling left open whether applying a public accommodations law to compel the creation of a custom, expressive good violates First Amendment rights. The Court left the underlying constitutional law issue open for another day, inviting the next test case.

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The Legal Dispute in 303 Creative LLC v. Elenis (2023)

The parties in 303 Creative v. Elenis involved Lorie Smith, a Colorado website designer, and Colorado officials, including Elenis, who were charged with enforcing the Colorado Anti-Discrimination Act (CADA).

Smith sought to design custom wedding websites, but declined to create websites that celebrated same-sex marriages, citing her own beliefs.

Under CADA, businesses open to the public cannot deny services based on numerous characteristics, including sexual orientation. Under the law, businesses also cannot post notices signaling such refusals based on a protected characteristic.

This case involved a pre-enforcement challenge; it was brought before Smith offered the services. Smith argued that she was not refusing customers based on identity, but was declining to produce a specific message she disagreed with. The parties agreed that the websites were expressive and customized.

The Supreme Court’s Ruling in 303 Creative

The U.S. Supreme Court, in a 6-3 majority opinion authored by Justice Gorsuch, decided the case under the Free Speech Clause of the U.S. Constitution, not the Free Exercise Clause. Under the compelled speech doctrine, the First Amendment protects both the right to speak and the right not to be forced to speak.

The majority did not treat the case as involving pure speech or undertake a lengthy strict scrutiny analysis. The Court concluded that Colorado could not compel Smith to create expressive designs conveying messages she did not endorse. The majority’s analysis rested on the parties’ agreement that the websites were expressive and customized.

The Constitutional Basis for the Court’s Decision in 303 Creative: Free Speech

The Court relied on precedent, including West Virginia v. Barnette (1943; flag salute), Wooley v. Maynard (1977; “Live Free or Die”), and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995; parade organizers).

The Court found that because Smith’s websites were expressive products that resulted from expressive activity, she should not be forced to create them. This would amount to compelling her speech. The ruling targets compelling the creation of a message, but it does not allow a refusal to serve people for who they are.

Scope and Implications of 303 Creative

The Court’s ruling does not reach all creative expressive services. It applies only to genuinely expressive, custom, speech-based products and services.

Limitations include prohibiting businesses from refusing to serve a customer based on their identity. Further, non-expressive goods and services remain covered by anti-discrimination laws. In practical terms, the question turns on whether the government is compelling speech versus regulating commercial conduct.

Justice Sotomayor, writing for the dissent, worried the decision could open the door to broader refusals and erode equal-access protections. While the majority carved out a targeted exception, it did not authorize declining customers.

The Application of the 303 Creative Ruling by Courts

Courts have resisted an expansive reading of the Court’s majority opinion and have applied it narrowly to clearly expressive activity. This could mean future litigation is necessary to further define the boundaries.

The compelled speech doctrine is viewpoint-neutral and protects any sincerely held objection, religious or secular. The ruling rests on freedom of speech — the expressive nature of the compelled message.

Most litigation in this area involves religious beliefs and religious objectors, but that is not the source of the analysis. It turns on freedom of speech and expressive association. It remains to be seen whether courts will consistently extend the same protection to secular or unpopular viewpoints.

Consult a Constitutional Lawyer

The ruling generally means laws cannot force you to express messages you disagree with. This would violate the First Amendment; however, the protection may be narrower than you think. These cases can be challenging to untangle and highly fact-specific.

If you need further clarification for your situation as it relates to your rights and obligations, contact an experienced constitutional lawyer. They can provide the guidance you seek.