In 303 Creative v. Elenis the constitution of the U.S. engaged in its own skirmish of sorts against itself with the first amendment striking against the fourteenth amendment. I will analyze the Brief of 303 Creative in the U.S. Supreme Court case 303 Creative LLC. vs Aubrey Elenis et al. (docket number 21-476), and examine the arguments therein.
The arguments presented in the brief are as follows; 1) CADA violates the First Amendment by compelling artists to speak against their convictions, 2) The Accommodation Clause compels speech based on content and viewpoint, 3).The Publication Clause restricts artists’ speech based on content and viewpoint and 4) As applied to artists like Smith, CADA violates the First Amendment and cannot satisfy strict scrutiny
The first argument of Lorie Smith and 303 creative as a result revolves around her first amendment protected right to free speech and how the legislation in question, CADA, would lead her to speech unbecoming of her beliefs. Being a devout Christian, Lorie Smith feels that the government shall not force her to spread a message that would violate her beliefs and that has been a principle of the Court for all of history, for example in Rumsfeld v. Forum for Acad. & Institutional Rts. In the brief of 303 creative it is argued that Smith does not choose her clients based on their personal qualities but rather the message that they ask her to convey and thus her refusal is not a form of discrimination and in fact just her holding fast to her beliefs and her faith.
Smith sees 303 creative not as a means to make money but as a platform to create and spread the message of her faith. Drawing from a previous case of the Court, an unanimous one at that, Smith invokes Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. in which the Court deemed that forcing a public demonstration to convey messages opposing the demonstrators’ beliefs was unconstitutional. Smith’s argument in short is that 303 creative serves the same purpose for her as the demonstrations served for the veterans in Hurley. As determined in Hurley, when a law makes speech itself a public accommodation that same law could force a person to go against their beliefs and thus that law becomes unconstitutional by that fact alone. The same principle can be seen in Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett.
The second argument covers the so-called accommodation clause of CADA that is used by the state of Colorado to enforce their political and faith-based beliefs in ways that are both inappropriate and unconstitutional. The brief quotes the Tenth Circuit’s statement drawing once again from Hurley: “the law authorizes the government to take sides in an important cultural, political, and religious discussion – all in the name of “producing a society free of … biases,” Hurley, 515 U.S. at 578.
The most basic foundation of the first amendment protected by such cases as Texas v. Johnson and Turner Broad. Sys., Inc. v. FCC is the idea that speech shall not be prohibited simply because the government disagrees and the brief is of the opinion that this is exactly what CADA allows Colorado to do. As said in Reed v. Town of Gilbert, content-based speech laws “are presumptively unconstitutional” and when both the content of the speech and the viewpoint of the speaker determine the lawfulness of the message it is in clear violation of the first amendment.
For the third argument the brief dives into the publication clause of CADA with much of the same basis as the second argument had. The publication clause prohibits publishing speech that would directly or indirectly imply that certain services would not be offered to people of certain inclinations or beliefs. Colorado’s use of the publication clause to prohibit Smith’s speech based on that speech being illegal falls apart in opinion of the brief since Smith’s speech was in fact not illegal Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels.
The fourth and final argument is that for first amendment protected speech to be regulated there must be a compelling government interest to coerce or silence that protected expression which the state of Colorado was not able to show. As said in F.C.C. v. Pacifica Found, the government must remain neutral in areas of idea and thought and that neutrality disappears if that said government silences ideas that it doesn’t approve of. The brief argues that because CADA compels and regulates speech based on content and viewpoint, the law’s application to artists like Smith must at least satisfy strict scrutiny and that it fails immediately on the basis of it not being able to show an actual problem the law would fix Brown, Ibid.
All in all the brief of 303 Creative stands on a strong foundation of legality and builds upon numerous examples of the Court enforcing the first amendment protection that guarantees the legality of Smith’s speech. With a varying and multitudinous base built around former cases and verdicts and the clearly shown idea of the potential misuse of CADA’s clauses, it is no wonder that 303 Creative had the success it had when it was being decided on by the Supreme Court.
Team 303