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303 Creative v. Elenis

Description:  A Colorado law forces web designer Lorie Smith and her studio, 303 Creative, to design and publish websites promoting messages that violate her religious beliefs. The law at issue also gags Smith from even explaining on her own company’s website what websites she can create consistent with her religious beliefs.

Lorie Smith, owner of 303 Creative
Friday, Oct 29, 2021

WASHINGTON – Sixteen states, 45 members of Congress, and numerous legal scholars, economists, publishers, media organizations, and others have submitted friend-of-the-court briefs to the U.S. Supreme Court asking it to take the case of a Denver-area website designer required by the state to design and publish websites promoting messages that violate her religious beliefs.

Alliance Defending Freedom attorneys representing the designer, Lorie Smith of 303 Creative, asked the high court to review a 2–1 decision by a panel of the U.S. Court of Appeals for the 10th Circuit which ruled in favor of Colorado’s coercion. The panel majority also said that the state can prohibit her from even explaining on her company’s website which websites she can create in good conscience based on her religious beliefs.

“As the briefs filed in support of free speech and artistic freedom in this case agree, the government shouldn’t be permitted to weaponize the law to force a web designer to speak messages that violate her beliefs. The 10th Circuit recklessly threw these First Amendment guarantees aside, and that calls for the Supreme Court’s attention,” said ADF General Counsel Kristen Waggoner, who argued before the 10th Circuit on behalf of Smith. “The 10th Circuit’s reasoning turns free-speech protections on their head by saying that the more ‘unique’ speech is, the more the government can compel it. That kind of dangerous, unconstitutional reasoning is why we have asked the Supreme Court to take Lorie’s case and why we’re pleased to have the support of those who have filed briefs this week.”

The 10th Circuit issued an unprecedented decision in the case, 303 Creative v. Elenis, holding that Colorado’s Anti-Discrimination Act both forced Lorie “to create websites—and thus, speech—that [she] would otherwise refuse,” and also created a “substantial risk” of removing “certain ideas or viewpoints from the public dialogue,” including Lorie’s beliefs about marriage. Despite that, the 10th Circuit said it’s fine for the law to compel Lorie to speak messages with which she disagrees because she created “custom and unique” expression.

In a lengthy dissent, 10th Circuit Chief Judge Timothy Tymkovich disagreed: “[T]he majority uses the very quality that gives the art value—its expressive and singular nature—to cheapen it. In essence, the majority holds that the more unique a product, the more aggressively the government may regulate access to it—and thus the less First Amendment protection it has.” He added that the ruling “subverts our core understandings of the First Amendment.”

Several members of Congress echoed similar points in their amicus brief, saying the decision forces “individuals to speak views that conflict with their religious beliefs” and, worse still, “forces them to create speech that betrays their religious convictions.” Many others found the 10th Circuit’s opinion dangerous. Several publishers fear the decision will “lead to widespread suppression of speech,” while radio broadcasters, television networks, and other media producers explain that the decision “allows for government censure of disfavored speech and the compulsion of other speech.”

First Amendment scholars found the opinion novel because it created “an unusual and unusually dangerous new First Amendment principle: as expression increases in uniqueness, it enjoys ever decreasing First Amendment protection.” And law, economics, and philosophy scholars argue that the 10th Circuit’s “unique-equals-monopoly fallacy … gives local government authorities carte blanche to force creative professionals to speak on diverse topics.”

Smith’s lawsuit challenges parts of Colorado’s Anti-Discrimination Act, which the Colorado Civil Rights Commission has interpreted to require designers and artists to create works that convey messages contrary to their beliefs. Under that law, designers must speak messages they disagree with even if they, like Smith, decide what to create based on the message, not the personal characteristics of the client. Other courts have recently ruled in favor of artists subjected to similar laws in Minnesota and Arizona.

The lawsuit contends that Colorado Revised Statute § 24-34-601(2)(a) violates the First Amendment’s Free Speech and Free Exercise clauses. The state law is the same one the commission twice used against Masterpiece Cakeshop cake artist Jack Phillips, who is currently being harassed by an activist attorney in a third lawsuit that also attempts to use Colorado’s law against him. After a trial resulted in a decision against Phillips, ADF attorneys representing him and his shop appealed that case to the Colorado Court of Appeals.

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.


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ABOUT Kristen Waggoner

Kristen K. Waggoner serves as general counsel with Alliance Defending Freedom. In this role, Waggoner oversees the U.S. legal division, a team of 100 attorneys and staff who engage in litigation, public advocacy, and legislative support. ADF has represented the prevailing parties in multiple U.S. Supreme Court victories, including Masterpiece Cakeshop v. Colorado Civil Rights Commission and Uzuegbunam v. Preczewski, which she argued at the Supreme Court. She also served as counsel in the free speech victory the Supreme Court handed down in National Institute of Family and Life Advocates v. Becerra. She is a Peer Review Rated AV® Preeminent™ attorney in Martindale-Hubbell, who clerked for Justice Richard B. Sanders of the Washington Supreme Court after law school and served in private practice in Seattle for nearly 20 years. Waggoner is admitted to practice in multiple states, the Supreme Court, and numerous federal district and appellate courts.

ABOUT Kate Anderson

Kate Anderson serves as senior counsel with Alliance Defending Freedom, where she is the director of the Center for Parental Rights. Since joining ADF in 2015, Anderson has focused on protecting the conscience rights of individuals being unjustly compelled to forfeit their beliefs under threat of government retaliation, heavy fines, or other punishment. Prior to joining ADF, Anderson was an associate attorney with Ellis, Li & McKinstry, PLLC, in Seattle, where she litigated both civil and criminal cases. She obtained her law degree magna cum laude in 2009 from Gonzaga University School of Law, where she served on the Gonzaga Law Review. She is admitted to the state bars of Arizona and Washington, the U.S. Supreme Court, and several federal district and appellate courts.

ABOUT Jonathan Scruggs

Jonathan Scruggs serves as senior counsel and director of the Center for Conscience Initiatives with Alliance Defending Freedom. In this role, Scruggs leads the team defending the constitutionally protected freedom of creative professionals to live out their faith in business and professional life without being subjected to government coercion, discrimination, or punishment. Since joining ADF in 2006, Scruggs has worked on and prevailed in a variety of cases that protect the right of people to freely express their faith in their school, in their business, and in the public square. He earned his J.D. at Harvard Law School and is admitted to practice in the states of Arizona and Tennessee. Scruggs is also admitted to multiple federal district and appellate courts.

ABOUT John Bursch

John Bursch is senior counsel and vice president of appellate advocacy with Alliance Defending Freedom. Bursch has argued 12 U.S. Supreme Court cases and more than 30 state supreme court cases since 2011, and a recent study concluded that among all frequent Supreme Court advocates who did not work for the federal government, he had the 3rd highest success rate for persuading justices to adopt his legal position. Bursch served as solicitor general for the state of Michigan from 2011-2013. He has argued multiple Michigan Supreme Court cases in eight of the last ten terms and has successfully litigated hundreds of matters nationwide, including six with at least $1 billion at stake. As part of his private firm, Bursch Law PLLC, he has represented Fortune 500 companies, foreign and domestic governments, top public officials, and industry associations in high-profile cases, primarily on appeal. He received his J.D. magna cum laude in 1997 from the University of Minnesota Law School and is admitted to practice in numerous federal district and appellate courts, including the U.S. Supreme Court.