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303 Creative LLC v. Elenis asks whether artists can be compelled to speak

Jun 6, 2022 by Cindy Crawford

Public accommodations laws help ensure a free and open economy.

Traditionally, these laws have been applied to, well, public accommodations, such as hotels, or “what the old common law promised to any member of the public wanting a meal at the inn, that accepting the usual terms of service, they will not be turned away merely on the proprietor’s exercise of personal preference.”

As we wrote last fall, the Supreme Court was asked to answer the question: whether “applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.”

303 Creative LLC v. Elenis asks whether public accommodation laws can be used to compel artists to speak — or stay silent

The Court took the case, broadening the question to encompass more than religious motivation, asking “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

This question raises the constitutional implications of what has become an increasingly common expansion of commercial law, including public accommodations law, to supplant constitutionally protected speech rights.

Indeed, Colorado has argued mandating speech under the Colorado public accommodations law “is a straightforward regulation of commercial conduct.”

This nothing-to-see-here approach to displacing bedrock First Amendment rights by declaring an individual artist to be a public accommodation or a common carrier threatens to undo rights of conscience for anyone who speaks for a living.

How the outcome of 303 Creative LLC v. Elenis could place all expressive professionals at risk

Americans for Prosperity Foundation (AFPF) filed an amicus brief in the Supreme Court in support of the Petitioner, an independent web designer who wants to retain control of the messages she conveys with her custom web designs.

Colorado argues a message cannot be distinguished from the person who wants to send it and thus creative professionals cannot exercise discretion over the messages they create without running afoul of public accommodations laws if the customer is within a protected class.

This argument, if accepted, would displace deeply rooted First Amendment protection of speech to compel speech whenever government declares certain messages must be delivered, placing all expressive professionals at risk.

If individual speakers can be rendered common carriers, it is not just custom web designers who are imperiled, but also attorneys, educators, mental health professionals, and any other professional who relies on speech to do her job.

As the brief argues,

Private artists . . . have none of the characteristics that delineate a common carrier under the common law and cannot be rendered common carriers by fiat. Nor do they resemble modern examples of common carriers, which, in narrow circumstances may be required to carry the speech of others in a similar way to how carters, railways, or ferry operators could be required under the common law to carry freight for any customer that met its terms.

AFPF asks the Court to clarify that public accommodations laws cannot be interpreted to conflict with the First Amendment to convert a speaker into a public accommodation or to compel the creation of expressive products or services.

Read our full amicus brief for 303 Creative LLC v. Elenis.