The Volokh Conspiracy
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On Friday, the Supreme Court ruled in 303 Creative v. Elenis that Colorado cannot force a website designer to create messages celebrating same-sex marriages. Eugene and I joined others in an amicus brief arguing that this potential application of a state public accommodations law would be an unconstitutional speech compulsion. As Eugene has already noted, the Supreme Court agreed.
I read Justice Gorsuch's decision as broader in some respects than some may hope it is. It can't reasonably be cabined to all of its specific facts. The rationale for the vendor's message-based objection--religious or not, internally consistent or not, odious or not--does not matter. Op. at 24-25. Nor, in principle, are the speech protections the Court outlined limited to the creation of messages about same-sex marriage, marriage in general, or homosexuality.
On the other hand, the decision is also narrower in important ways than some progressives fear or some religious conservatives/libertarians may hope. I read 303 Creative to hold that a vendor cannot be compelled by the government:
(1) to create customized and expressive products (whether goods or services) that constitute the vendor's own expression (op. at 9, 16);
(2) where the vendor's objection is to the message contained in the product itself, not to the identity or status of the customer (op. at 18 n. 3, 20).
Consider each part of this:
I. The product must be customized and expressive
The Court repeatedly emphasized the unusual nature of the product Lorrie Smith, the website designer, proposed to sell: working closely with each individual customer to tailor specific and original messages by using Smith's own words and designs. Very few businesses take on such individualized commissions. She was not selling grilled cheese sandwiches at a lunch counter. Because of the requirements of customization and expressiveness, there will be no claim for the "vast array of businesses" selling "innumerable goods and services." Op. at 14.
First, almost all of the products we buy are neither customized nor expressive. From dairy to desks to dry cleaning, they are what the Court calls "ordinary commercial products."
Second, most customized products are not expressive. Think of the Ford F150, which has literally millions of option combinations. Or a Whopper, which was once promoted with the tagline, "Have it your way," indicating Burger King's willingness to tailor the burger to customers' taste preferences. There will be no claim for businesses selling these kinds of products.
Of course, this analysis does not answer all questions on the margins. The biggest of these will be: what sorts of customized products count as expressive? (Given Colorado's stipulations and the nature of the proposed services for wedding website design, product expressiveness wasn't a close question in 303 Creative. Op. at 21-22).
Line-drawing itself is not a new problem in free speech cases. In particular, the Court has developed doctrines to distinguish what is protected speech from what is unprotected conduct. That test combines elements that are both subjective (the speaker's own intention to communicate a message) and objective (the onlooker's perception whether the message has actually been communicated). Under this test, conduct is sometimes expressive but most often not. What's new after 303 Creative is that courts will now need to apply similar principles to commercial products.
There is a risk that some lower courts will be too aggressive in constitutionally exempting non-expressive commercial products from anti-discrimination rules. That result would not only be harmful to the dignitary and material interests of buyers, but it would ultimately discredit and undermine the genuine First Amendment interests of speech creators.
Eugene and I have offered some guidelines for distinguishing expressive from non-expressive products in prior briefs (see, e.g. our amicus brief here at pp. 5-14, explaining in Masterpiece Cakeshop why cake-making is not generally expressive). Some kinds of products will be clearly expressive, and others will be expressive on the margins, but the vast majority won't be expressive. There will be hard and intensely fact-bound judgments to make, based on what has historically counted as expressive (e.g. parades, books, paintings, and films) and based on the use of intrinsically or inherently expressive elements in the work (e.g., speaking, writing, and deploying symbols). The mere fact that the vendor subjectively regards the product as "art" that expresses some message would not be enough to trigger First Amendment protection. A limousine driver may think he turns corners with a distinctive flair, but his craft is neither historically nor intrinsically expressive. A Subway "sandwich artist" might be creating something worthwhile, but it's not speech.
Before Friday, the answer of some scholars and organizations like the ACLU was that none of this matters because when you're selling things in the public marketplace you basically have no First Amendment rights. Your choices were to quit your trade or come to heel. 303 Creative is clear that this answer will no longer suffice. It never really did. Op. at 16-17, 23.
Third, most expressive products are not customized. Think of a store that sells paintings or sheet music or books. Lots of protected expression goes into these products, but they're not created according to the demands or preferences of the particular customer. Since the artist or composer or writer has already created the product, the state has not compelled their creation. Refusing to sell these expressive products to protected classes of customers amounts to illegal status- or identity-based discrimination, which is not protected by the First Amendment. In general, if it's already on the shelf (physically or online) you have to sell it to all comers.
Here, too, there will be some cases at the margins of both customization and expression. As the dissent acknowledged, portrait photography is a generally expressive medium. Sotomayor dissent at 28. But even in this presumptively constitutionally protected context, some settings are more like an F150 assembly line than Annie Leibovitz's studio. I don't think a photographer offering to take standard school photos, corporate headshots, passport photos, or pictures with a mall Santa truly customizes the product or expresses something to a degree that warrants constitutional protection. Such a claim would trivialize free speech protection in the way that the Court in Rumsfeld v. FAIR thought the law schools' objections to sending emails about military-recruiter meeting times and locations did.
A wedding photographer, on the other hand, does offer highly customized and expressive services, working closely with each customer to depict the wedding in a certain way. (Cato, Eugene, and I first made this argument a decade ago in an amicus brief supporting certiorari in Elane Photograhy LLC v. Willock. The Court denied cert.)
Similarly, a website designer who offers a preset menu of plug-and-play options for customers to create their own wedding websites is offering a product customized mainly by the buyer, not the designer. It's the customer's speech, not the vendor's.
By contrast, a website designer like Smith who consults with customers to compose original written messages and creative graphics is herself customizing the product. The product is collaborative. And while it's certainly the couple's expression, it's also importantly the designer's.
II. The objection must be to the message in the product, not the customer's status
The vendor's objection also has to be to the message contained in the product, not to the status or identity of the customer. Businesses can't claim constitutional protection for a categorical rule that they won't sell commissioned products to gays, Jews, Blacks, or women. And of course they will not get a free-speech exemption from employing, insuring, housing, medically treating, or serving any particular class of people. 303 Creative reaffirms the cardinal rule that the First Amendment does not shield these acts of status-based discrimination.
There will be questions about whether the message-based objection is tantamount to a status-based one and therefore unprotected. Take this very case. As a matter of statute, Colorado regards discrimination based on opposition to same-sex marriage as a form of anti-gay discrimination in the same way that a ban of wearing yarmulkes is a form of discrimination against Jews. That seems justifiable in most regulatory and anti-discrimination contexts. For example, an employer who fires a worker because she's in a same-sex marriage has fired the worker based on her sexual orientation. State bans on same-sex marriage or denials of benefits to married same-sex couples similarly constitute sexual orientation discrimination.
But the federal government's argument that as a matter of constitutional law objections to same-sex marriages are necessarily status-based--equivalent to objections to gay people--won't fly for the compelled creation of expressive products. That's because, unlike in the regulatory context or where non-expressive discrimination occurs, the protected expression of another person is at stake "about a matter of major significance." Op. at 25. Massachusetts in Hurley and New Jersey in Dale were similarly free to treat privately organized parades and membership groups, respectively, as "public accommodations" for purposes of state law but those statutory applications could not prevail over First Amendment rights.
The New York Times print-edition headline on Saturday, "Website Designer Wins Right to Turn Away Gay People," was therefore misleading. (The online headline was more accurate.) The Court explicitly rejected the dissent's contention that it was permitting vendors to refuse service to classes of people. Here the vendor only refused to create a message.
Taken together, I think the 303 Creative requirements for a successful speech claim (message-based objections to creating customized and expressive products) also mean that the business' objection must be based on expression contained in the product itself. It will not suffice to say that the very fact of the sale alone sends a message the vendor does not want to send. For example, a baker could not refuse to sell a gay couple a premade wedding cake sitting in a display case on the grounds that the sale signals approval of their marriage.
It will also not suffice that the vendor objects simply to the purpose or occasion for which the customer intends to use a product. If a transgender person wants to buy pink and blue streamers to celebrate their gender transition, the business can't refuse to sell the streamers based solely on the purpose for the use. Unlike the wedding websites in 303 Creative (op. at 5), the ultimate use and configuration of the streamers in the customer's home would not likely be understood by others as the vendor's speech or even as a collaboration between the vendor and customer.
In other words, as I read the Court's opinion, it has not approved protection for unadorned complicity objections, i.e., claims that any connection to, or facilitation of, an objectionable act or message is constitutionally shielded from legal compulsion.