U.S. Supreme Court Expands First Amendment Rights for Business Owners

The Supreme Court’s 6-3 decision, 303 Creative LLC v. Elenis, issued on Friday, June 30, 2023, held that requiring a business owner to create customized wedding websites for same-sex couples would violate the business owner’s First Amendment right to free speech. This holding expands First Amendment rights for business owners engaged in expressive commercial activity.

In 303 Creative LLC v. Elenis, a small business owner  sought an injunction to prevent Colorado from prosecuting her for refusing to perform expressive services for a same-sex couple in violation of Colorado’s public accommodation law. The business owner seeks to create customized websites for weddings that are individually tailored to convey and celebrate the details of each client’s “unique love story.” The business owner claimed that, due to her religious beliefs, she does not want to create websites for same-sex weddings. She clarified that she will not deny her services to homosexual individuals themselves, but will deny commissions for her expressive services that would require her to create a tailored message in contradiction with her religious beliefs.

In the majority opinion, the Court reasoned that the product at issue is not a general commercial product, but a customized work that is analogous to the work of an artist or a writer. The Court argued that requiring the business owner to make websites for same-sex couples would set a precedent that would compel all artists to take all commissions asked of them, even if the message expressed by the commissioned product directly conflicts with the artist’s beliefs. They noted that such a holding could result in “an unwilling Muslim movie director to make a film with a Zionist message.”

The three dissenting Justices argued that “the act of discrimination has never constituted protected expression under the First Amendment,” and Colorado’s public accommodation law “targets conduct, not speech, for regulation.” Thus, from the dissent’s perspective, regardless of the motivations underlying the conduct, a business owner has no right under the Constitution to refuse members of a protected class equal access to its publicly available services. The majority clarified its position that the First Amendment protection only applies to services that compel speech, in particular, speech involving the speaker’s desired message on “a question of political and religious significance.”

This case is similar to the 2018 Supreme Court case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. There, the Colorado Civil Rights Commission (“Commission) held that business owners subject to Colorado’s public accommodations laws were not entitled to an exemption from non-discrimination in the provision of creative services, such as making custom wedding cakes, on the basis of the owner’s First Amendment free speech and free exercise of religion rights. While the facts of these two cases are similar, on certiorari review in Masterpiece, the Court ultimately set aside the Commission’s order based on the procedural deficiencies of the case, rather than the merits of compelling expressive commercial activity.

The Courts holding in 303 Creative LLC v. Elenis does not extend to ordinary commercial goods and does not give business owners a pass to turn away customers of a protected class. Additionally, this holding does not extend to other traditional public accommodations, such as hotels and restaurants, because those businesses are not producing protected speech within the scope of their services. For now, the extent of this holding appears to be limited to a business owner’s provision of services and products that constitute “pure speech” protected by the First Amendment.

Addison C. McCauley
Natalie L. Wisnieski, Summer Associate