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303 Creative v. Elenis

Description:  Lorie Smith is an artist who runs her own design studio, 303 Creative. She specializes in graphic and website design and loves to visually convey messages in every site she creates. She left the corporate design world to start her own small business in 2012 so she could use her skills to promote causes consistent with her beliefs and close to her heart, such as supporting children with disabilities, the beauty of marriage, overseas missions, animal shelters, and veterans. She was excited to expand her portfolio to create websites that celebrate marriage between a man and a woman, but Colorado made clear she’s not welcome in that space. A Colorado law is censoring what she wants to say and requiring her to create designs that violate her beliefs about marriage. She enjoys working with people from all walks of life, but, like most artists, can’t promote every message. Her decisions about which projects to design are based on what message she’s being asked to express, not who requests it. After realizing that Colorado was censoring her and after seeing Colorado use this same law to punish Masterpiece Cakeshop owner Jack Phillips, she challenged the law to protect her freedom and her art studio.

Lorie Smith, owner and founder of 303 Creative
Thursday, May 26, 2022

WASHINGTON – Alliance Defending Freedom attorneys filed their opening brief Thursday with the U.S. Supreme Court on behalf of Denver-area graphic artist and website designer Lorie Smith and her design studio, 303 Creative, in 303 Creative v. Elenis. Colorado law requires Smith to design graphics and websites that violate her religious beliefs about marriage as the union of one man and one woman and censors what she wants to say on her own website.

Even though Colorado admitted that Smith works with people from all walks of life, including those who identify as LGBT, Colorado wants to force her to speak messages about marriage that go against her core convictions.

“Free speech is for everyone. The government can’t force Americans to say something they don’t believe,” said ADF General Counsel Kristen Waggoner. “The First Amendment protects the right of every American to express ideas without fear of government punishment even if the government disagrees with those ideas. Yet Colorado continues to violate Smith’s constitutional rights by insisting she speak messages about marriage inconsistent with her beliefs. We hope the Supreme Court will uphold free speech for all Americans, because without this freedom, America will cease to be a vibrant and free democracy that rejects government coercion and promotes human flourishing.”

In February, the Supreme Court agreed to review a 2–1 decision in the case by the U.S. Court of Appeals for the 10th Circuit, which took the position that Colorado can compel Smith to create messages about marriage that violate her conscience even though her designs are “pure speech.” The dissent called the majority’s opinion “staggering” and “unprecedented” because the “Constitution protects Ms. Smith from the government telling her what to say….”

“Forcing artists like painters, photographers, writers, graphic designers, and musicians to speak messages that violate their deeply held beliefs fails to comport with the First Amendment’s promise of ‘individual dignity and choice…,’” the opening brief explains. “As this Court unanimously held over 25 years ago, the government may not use public-accommodation laws to compel speakers to endorse certain messages and eschew others.”

“Government officials are using their power to coerce those who hold views those officials disfavor,” the brief continues. “The consequences are often severe. Barronelle Stutzman was forced to retire and hand over her company after Washington prohibited her from creating floral art for weddings. Elane Photography and Sweet Cakes went out of business entirely. Emilee Carpenter is facing six-figure fines and jail. Chelsey Nelson and Bob Updegrove are in litigation. And Jack Phillips has been in court for 10 years—despite prevailing in this Court. Such coercion will continue to increase unless this Court issues a definitive ruling protecting the First Amendment rights of these creative professionals” [citations omitted and hyperlinks added].

A recent survey conducted by OnMessage found that 95% of respondents agreed that “Americans should be free to express ideas even if the government disagrees with those ideas,” 90% agreed that “the government should not be able to force you to say things you don’t believe,” and 87% agreed that “the government should not deny free speech rights to Americans who create art for a living.”

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.