Supreme Court holds First Amendment free speech protection allows a website designer to refuse to create expressive wedding designs for same-sex couples

On June 30, 2023, in a 6-3 opinion, the United States Supreme Court issued its much-anticipated decision in 303 Creative LLF et al, v. Elenis et al, holding that the First Amendment prohibits Colorado from forcing a website designer to create an expressive wedding site for a same-sex couple. According to the majority, the wedding website qualifies as “pure speech,” and the First Amendment protects the freedom to “think as you will and to speak as you think.”

The Court’s decision is based on the First Amendment, which does not apply to private employers and their employees. The majority also emphasized that its decision relies on the parties’ agreed-upon stipulations, including that the web designer’s designs are “expressive."  Nonetheless, the decision may provoke certain challenges within the employee-employer relationship. In particular, businesses that provide goods and services to the public may encounter more situations where an employee refuses to perform their job duties based on religious or moral objections or refuses to serve certain customers based on sexual orientation or other protected characteristic.

However, it is important to recognize that the decision does not impact the ability – and indeed, the obligation – of private employers to establish policies and rules to comply with anti-discrimination and anti-harassment obligations and promote a respectful environment for employees and customers. Below we discuss the Court’s decision and its potential implications.

Background

Lorie Smith, through her company 303 Collective LLC, offered “website and graphic design, marketing advice, and social media management services.” Ms. Smith decided to expand her services to include wedding website designs providing “couples with text, graphic arts, and videos to ‘celebrate’ and ‘conve[y]’ the ‘details’ of their ‘unique love story’” but claimed to be concerned that the State might seek to enforce the Colorado Anti-Discrimination Act (CADA) to compel her to create wedding websites inconsistent with “her belief that marriage should be reserved for unions between one man and one woman.” Accordingly, she filed a lawsuit in federal district court seeking to enjoin the State from enforcing CADA, which "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.”

The parties stipulated to numerous key facts, including: Ms. Smith was “willing to work with all people regardless of classifications such as race, creed, sexual orientation and gender”; she will “create custom graphics and websites for clients of any sexual orientation”; she will not produce content that encourages violence, demeans another person, promotes views inconsistent with her religious commitments or contradicts “biblical truth;” she provides design services that are “expressive” and her “original, customized” creations “contribut[e] to the overall message” that her business communicates; and the hypothetical websites will be “customized and tailored” through close collaboration with individual couples and express her view of marriage.

The District Court denied Ms. Smith’s request for an injunction and the United States Court of Appeals for the Tenth Circuit affirmed. A divided panel held that Colorado satisfied “strict scrutiny” insofar as it showed that forcing the owner to create speech would serve a compelling governmental interest in ensuring “equal access to publicly available goods and services” and that no less restrictive alternative existed to secure that interest because she planned to offer “unique services” not available elsewhere. The Supreme Court granted certiorari and reversed.

The Supreme Court Holds that Speech Cannot Be Compelled to Align with State Governmental Desires When the Speech Suppresses First Amendment Rights

The majority framed the issue to be resolved as whether a state can force someone who provides her own expressive services to abandon her conscience and speak its preferred message. According to the Court, “[w]hen a state public accommodations law and the Constitution collide, there can be no question which must prevail.” First Amendment protections “belong to all, and not just to speakers whose motive the government finds worthy.”

In holding that Colorado’s state law cannot compel a person to speak its own preferred messages, the Court relied heavily on the parties’ stipulations and its prior cases, including West Virginia Bd. of Ed. v. Barnette (First Amendment prevented the State of West Virginia from forcing schoolchildren to salute the Nation’s flag and recite the Pledge of Allegiance); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (Massachusetts’ public accommodations statute could not be used to force parade organizers to include a group of gay, lesbian, and bisexual individuals who would “affec[t] the[ir] message”); and Boy Scouts of America v. Dale (Boy Scouts is “an expressive association” entitled to First Amendment protection and forcing the Scouts to include a gay scoutmaster would “interfere with [its] choice not to propound a point of view contrary to its beliefs”).

While the Court acknowledged the importance of public accommodation laws, which “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments,” it reasoned that “no public accommodations law is immune from the demands of the Constitution.”

In her dissent, Justice Sotomayor criticized the Court’s majority for, among other things, “grant[ing] a business open to the public a constitutional right to refuse to serve members of a protected class” and expressed serious concerns that the decision “threatens to balkanize the market and to allow the exclusion of other groups from many services.” The majority acknowledged that “determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions,” but noted that this case presented no complications in view of the parties’ broad stipulations. Only time will tell the impact 303 Creative has on future litigants’ attempts to curtail the enforceability of state public accommodation laws in other contexts.

The Potential Impact on Private Employers

While the Court’s decision is limited to the stipulated facts of the case and does not expressly impact the rights of private employers and employees, it nevertheless may have an impact in the workplace. Employees may be more likely to assert a right of conscience, including for reasons of religious belief, to decline to carry out their job duties (particularly on the heels of the Court’s decision in Groff v. DeJoy clarifying a more employee-friendly standard for determining whether a request for religious accommodation under Title VII creates an undue burden for the employer).

Employers are encouraged to continue to reinforce their anti-discrimination and harassment policies, including regular training, to comply with Title VII and other employment laws that prohibit discrimination or harassment based on sexual orientation or gender identity.

They should also prepare to address employee speech and conduct issues in and around the workplace on topics that may be perceived as divisive or controversial, such as politics, religion, gender identity and affirmative action (also addressed by the Supreme Court this term) by:

• Reviewing employment policies related to workplace conduct, speech and expectations (eg, code of conduct, respectful workplace, social media, IT use, dress code).
• Considering guidelines around employee discussions on internal message boards.
• Ensuring clear procedures for reporting and responding to complaints of violations of company policy and training managers and supervisors on how to respond, including by developing strategies to ease workplace tensions.
• Being mindful of various laws that may be implicated by employee speech or activity (eg, discrimination, harassment, retaliation, NLRA obligations, off-duty conduct laws, state laws protecting political expression).

Please reach out to the authors or your DLA Piper relationship attorney if you have questions about how the Supreme Court’s decision may impact your business and workforce.