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US Supreme Court to hear case of artist threatened under ‘Orwellian’ Colorado law

ADF attorneys represent Lorie Smith and her web design firm in 303 Creative v. Elenis

Tuesday, Feb 22, 2022

WASHINGTON – The U.S. Supreme Court agreed Tuesday to take the case of a Denver-area website designer subject to a Colorado state law that censors and coerces the speech of creative professionals whose religious beliefs do not conform to state orthodoxy.

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 that ruled in favor of Colorado’s coercive law. The law, referred to by the dissenting 10th Circuit judge as an “Orwellian diktat,” is the same one that continues to threaten Colorado cake artist Jack Phillips of Masterpiece Cakeshop.

“The government doesn’t have the power to silence or compel creative expression under the threat of punishment. It’s shocking that the 10th Circuit would permit Colorado to punish artists whose speech isn’t in line with state-approved ideology,” said ADF General Counsel Kristen Waggoner, Smith’s attorney. “Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of, and to punish anyone who dares to dissent. Colorado’s law—and others like it—are a clear and present danger to every American’s constitutionally protected freedoms and the very existence of a diverse and free nation.”

The 10th Circuit issued an unprecedented decision in the case, 303 Creative v. Elenis, holding that Smith serves “all people regardless of sexual orientation,” yet Colorado’s Anti-Discrimination Act requires her to engage in speech that violates her conscience and in turn creates a “substantial risk” of removing “certain ideas or viewpoints from the public dialogue.” Further, the law allows secular artists but not religious ones like Smith to make “message-based refusals.” The 10th Circuit nonetheless took the extreme position that the government may force an artist to create expressive content, even if that artist’s “pure speech” violates her faith, going so far to suggest that the more unique or custom the speech is, the more power the state has to compel it.

For years, Colorado has relentlessly sought to target certain speakers, and other states have followed that example. As ADF explained in a brief asking the high court to accept Smith’s case, “The First Amendment’s promises of free speech and religious liberty are bedrock principles. Yet over the past decade, those promises have been shattered: Elane Photography and Sweet Cakes are out of business, Barronelle Stutzman was forced to retire, Emilee Carpenter is risking jail, Bob Updegrove and Chelsey Nelson are in harm’s way, and Jack Phillips is still in court, pursued by a private enforcer who wants to finish the job. This Court must act now or officials with enforcement power over nearly half the country’s citizens will continue compelling artists to speak against their consciences while silencing them from explaining their beliefs.”

Sixteen states, 45 members of Congress, and numerous legal scholars, economists, publishers, media organizations, and others filed friend-of-the-court briefs in support of Smith’s petition.

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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Statements from press call (2022-02-22)

ADF General Counsel Kristen Waggoner:

The government shouldn’t weaponize the law to force a web designer to speak messages that violate her beliefs. This case is about the freedom of all artists and all Americans. This freedom transcends particular views and is foundational to a free society.

Like countless other artists, Lorie Smith serves all people. The 10th Circuit agreed.

Lorie’s website designs are also speech protected under the First Amendment. The 10th Circuit agreed with that, too.

And Lorie chooses whether to create websites based on their content, not the people asking for those websites. The 10th Circuit agreed here as well.

But despite all that, the majority determined that Colorado’s law trumps artists’ First Amendment rights: that they can actually be compelled to create art that communicates ideas contrary to their convictions and then be compelled to publish those ideas on the web for all to see. Colorado says Lorie can be made to do all these things while being forced to put her company’s name—and its seal of approval—on speech that promotes ideas that violate her conscience.

No one should be compelled to speak messages that violate their conscience under threat of government punishment. If the government has the power to force Lorie to speak a message, it can force any one of us to do so—a Democratic speechwriter to promote the Republican party or an LGBT web designer to condemn same-sex weddings.

This case illustrates exactly why we have a First Amendment—to prevent officials from eliminating ideas they dislike from public dialogue and from punishing beliefs they want to purge from the public square. Free speech allows us to explore and test ideas and pursue truth; it is foundational to a diverse society. Without it, the state decides what is truth, and that looks a lot more like a totalitarian regime.

The First Amendment’s promises of free speech and religious liberty are bedrock principles. Yet over the past decade, those promises have been shattered: In New Mexico, Elane Photography is out of business; in Washington, Barronelle Stutzman was forced to retire; in New York, Emilee Carpenter is risking jail; and in Colorado, Jack Phillips is back in court, enduring his 10th year of litigation, pursued by an activist who wants to finish the job that the state started. The Supreme Court must protect speech now, or officials with power over millions of Americans will continue compelling people to speak against their convictions and silencing them when their views are at odds with the state’s view. Colorado’s law and those like it brazenly flout the Constitution, censoring and coercing the speech of artists whose religious beliefs do not conform to state orthodoxy.

The 10th Circuit decision gives the government virtually unlimited power. In his dissent to the decision below, 10th Circuit Chief Judge Tymkovich called Colorado’s rules an “Orwellian diktat,” explaining that the state has turned anti-discrimination laws into tools of discrimination when they punish citizens like Lorie Smith. Orwellian decisions lead to Orwellian consequences. Americans deserve better than that. And the Constitution requires it.

Lorie is an amazing artist and a compassionate, kind woman. It’s ADF’s privilege to represent her, and I look forward to arguing Lorie’s case and urging the high court to protect Lorie and the freedom of all artists.

303 Creative Owner Lorie Smith:

I launched my business, 303 Creative, about 10 years ago. I love creating custom websites and graphics and working with individuals and small businesses to help them solve their challenges, promote their events, and market their products and services. Like any commissioned artist and speaker, I love using my talents to shape messages for my clients—provided those messages don’t violate my values.

Wedding websites offer a natural fit for my skills, but in today’s culture, that immediately raises the question of promoting not only unions between a man and a woman, but same-sex ceremonies, too. My religious beliefs won’t allow me to promote that second option. I can’t create a site that would celebrate views contrary to my beliefs.

I have clients ranging from individuals to small business owners to non-profit agencies. I have served and continue to serve all people, including those who identify as LGBT. But like all artists, there are some messages that I can’t pour my heart, imagination, and talents into creating because they violate my core convictions.

Another Colorado artist, Jack Phillips, also had to take his case all the way to the U.S. Supreme Court after declining to create a custom wedding cake celebrating a same-sex marriage. Two more legal attacks have engulfed Jack since then, so it’s clear the Supreme Court needs to remind officials that there are limits to government power. In his current legal battle, an attorney sued Jack because he declined to create a custom cake celebrating a gender transition. And, as a fellow artist who shares many of Jack’s beliefs, I had to assume they’d be coming after me, too. In fact, since we started this litigation, Colorado has only confirmed that they believe they have the power to compel my speech.

Incredibly, the majority of a three-judge panel with the 10th Circuit decided that—as a person of unique, distinctive creative skills—I and my one-person studio constitute a monopoly. And, as a monopoly, I have no right to retain my artistic freedom. The more unique my speech becomes, the more power the government has to regulate it. Imagine telling Taylor Swift that she has to sing whatever lyrics the government tells her to sing because no one writes songs quite like she does.

Artists don’t surrender their freedom of speech when they choose to make a living by creating custom expression. Those who create speech for a living are entitled to the full protection of the Constitution. Just because we communicate one viewpoint doesn’t mean we should be forced to promote an opposing viewpoint. Laws should not be weaponized to force us to do so.

I am immensely grateful that the U.S. Supreme Court will hear my case, and I am hopeful that they will rule in favor of free speech for all artists and, ultimately, for everyone.



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