N.J. Attorney General's Office Releases Guidance on 303 Creative

From the N.J. Attorney General's office, Division on Civil Rights, "Guidance on the New Jersey Law Against Discrimination Following the U.S. Supreme Court's Decision in 303 Creative LLC v. Elenis," released July 26:

This enforcement guidance explains how the New Jersey Office of the Attorney General and the Division on Civil Rights (DCR) will apply the New Jersey Law Against Discrimination (LAD) to prohibit discrimination by places of public accommodation following the U.S. Supreme Court's recent ruling in 303 Creative LLC v. Elenis. {The purpose of this guidance document is to clarify and explain DCR's understanding of existing legal requirements in order to facilitate compliance with the LAD. This guidance document does not impose any new or additional requirements that are not included in the LAD, does not establish any rights or obligations for any person, and will not be enforced by DCR as a substitute for enforcement of the LAD. This document does not provide legal advice and should not be treated as providing legal advice. Owners of places of public accommodation and others with questions about the LAD are encouraged to speak with a qualified attorney to address their specific questions.}

The LAD prohibits places of public accommodation— that is, places open to the public—from discriminating on the basis of actual or perceived sexual orientation, gender, gender identity, gender expression, race, color, national origin, ancestry, religion, disability, and other protected characteristics. The ruling in 303 Creative does not change how the LAD applies to the vast majority of public accommodations across the State, and DCR remains firmly committed to enforcing the LAD and safeguarding the rights of all New Jerseyans.

In 303 Creative, the U.S. Supreme Court considered whether the First Amendment barred the application of a Colorado anti-discrimination statute, which prohibited places of public accommodation from discriminating on the basis of sexual orientation, to a web designer who intended to make customized websites for weddings but not to do so for same-sex weddings. The parties agreed that the web designer's websites were "original" and were "customized and tailored" for each customer, and that the websites the business designed were "expressive" and expressed the designer's own speech and message regarding her clients' weddings. The parties also stipulated that the web designer was willing to work with all people regardless of their protected characteristics and, in particular, would create custom graphics and websites for clients of any sexual orientation. Based on those specific facts and stipulations, the Supreme Court held that the web designer had a First Amendment right not to make her customized website designs for same-sex weddings.

The Supreme Court's ruling does not change how the LAD applies to the vast majority of businesses and vendors that are open to the public in the State. The LAD prohibits places of public accommodation from unlawfully discriminating against patrons or prospective patrons—that is, denying them full or equal accommodations, advantages, facilities, privileges, or services—on the basis of actual or perceived sexual orientation, gender, gender identity, gender expression, race, color, national origin, ancestry, religion, disability, and other protected characteristics. This means that a place of public accommodation cannot refuse to serve a prospective patron, or treat a patron or prospective patron differently, based on a protected characteristic. The LAD also prohibits places of public accommodation from publishing, circulating, or displaying any communication or advertisement stating that the public accommodation will discriminate against or refuse to serve patrons based on a protected characteristic. In the overwhelming majority of cases, these prohibitions will continue to apply as they did before the Supreme Court's decision.

The Supreme Court's ruling exempts from anti-discrimination laws like the LAD only a narrow set of services offered by some places of public accommodation. In order to assert an exemption, at a minimum, a public accommodation must establish that (1) its creative services are "original" and "customized and tailored" for each customer; (2) the creation is "expressive" and expresses the creator's own First Amendment-protected speech; and (3) the public accommodation's refusal to provide the creative service to a customer is based on the message it conveys, not the customer's identity or protected characteristic standing alone. As a practical matter, many of the products or services that meet that narrow definition—for example, a documentary film created by a movie director—are created by artists or businesses that fall outside the LAD's definition of a public accommodation already. Moreover, because the overwhelming majority of places of public accommodation do not provide "customized," "original," and "expressive" products or services to the public that express the creator's own speech, the Court's decision does not exempt most places of public accommodation—or most goods and services—from the LAD. That is why, as the Court itself acknowledged, state civil rights law still applies to "a vast array of businesses" selling "innumerable goods and services."

First, public accommodations are not exempt from civil rights laws when they offer or sell products or services that are not "customized" or "original." A grocery store, department store, or hotel that sells products off its shelves or makes its services and facilities available to all guests does not offer a "customized" or "original" product for customers. These places of public accommodation cannot refuse to serve a prospective customer or treat a customer differently because of their protected characteristic. Nor can their employees: An employee of a public accommodation cannot discriminate against a patron based on a protected characteristic, even if another employee is willing to serve that patron.

Second, even where a public accommodation does in fact offer "customized" products or services, it may be exempt from the LAD only where the customized products or services are "expressive" and reflect the designer's own First Amendment-protected speech. Indeed, as the Court explained, the "typical application of a public accommodation law requiring an ordinary, non-expressive business to serve all customers or consider all applicants" remains plainly lawful. For example, the following services, while sometimes customized, do not generally express the vendor's own speech and are, therefore, not exempt from the LAD:

• A web platform that allows customers to design their own wedding websites and create their own content cannot refuse to serve LGBTQIA+ patrons.
• A caterer that customizes a menu for the events it caters cannot refuse to cater a meal for a same-sex wedding anniversary party.
• A hair salon cannot refuse to provide a customized haircut or create a customized hairstyle for a customer based on the customer's gender identity.
• An event planner cannot refuse to work with a patron based on the patron's race.

Finally, even where a creative professional offers an original, customized service or product that is "expressive" and expresses the creator's own message, the Court has made clear that the creative professional is not automatically exempt from anti-discrimination laws like the LAD. If the business is a place of public accommodation, it still must offer the same message to all comers regardless of their protected characteristics. That follows from 303 Creative itself, which exempts from civil rights enforcement certain refusals to provide specific products or services based on the message they contain, but not based on the customer's identity or protected characteristic standing alone. Thus, even when a public accommodation creates an original, customized, expressive design that conveys a particular message, the public accommodation cannot refuse to create that same message for a different customer based on that customer's protected characteristic[.] …

Much of this seems correct to me (and I say this as someone who co-filed an amicus brief in 303 Creative urging the result that the Court reached), but there might be some uncertainty as to the "Finally" part, in at least some applications: A freelance painter who is willing to paint "Welcome to this holy place" on a Catholic church might have a good Free Speech Clause objection, I think, to painting the same words on a Satanist temple, or vice versa. Thanks to Howard Friedman (Religion Clause) for the pointer.

Comments

[SimonP]

Much of this seems correct to me (and I say this as someone who co-filed an amicus brief in 303 Creative urging the result that the Court reached), but there might be some uncertainty as to the "Finally" part, in at least some applications: A freelance painter who is willing to paint "Welcome to this holy place" on a Catholic church might have a good Free Speech Clause objection, I think, to painting the same words on a Satanist temple, or vice versa.

But it's not clear in this example that painting "Welcome to this holy place" on a church would constitute an "original, customized service or product that is 'expressive' and expresses the creator's own message." Indeed, what is helpful about the counter-example you've posed, Eugene, is that it exposes the basic problem with 303 Creative, insofar as it treats expressive works made for hire as the expressions of agents, rather than as the expressions of the principals who have hired the creators, with the sole purpose of facilitating the principals' own expression.

Your counter-example is also unhelpfully contrived, insofar as it is only a step removed from the example of a sign-painter who paints "Welcome to this holy place" on a piece of wood, for later placement by patrons. If you'd say that the sign-painter may have a Free Speech right not to paint such a sign for a patron hailing from a Satanist church - because the sign-painter anticipates that the sign will be later used in a way he disapproves of - it's hard to say that you're not really just talking about discrimination based on status. And from there, you're slipping into other examples of status-based discrimination, where an expressive or non-expressive creator can anticipate uses of their products or services in ways that change or imbue their work of meaning.

Consider, for instance, a sidewalk caricature artist. They are engaged in bona fide expressive activity, and hold themselves out to the public for their services. A same-sex couple approaches and asks to have their caricature created. Now, anyone familiar with such work will understand that their "expression" typically inheres in the portrayal and comedic exaggeration of the sitters' physical appearance. It is not typically to "condone" or "celebrate" anything about the sitters, who may not even make their relationship clear to the artist prior to his beginning his work. But one can imagine a same-sex couple taking his artwork and later cherishing it as a memento of their relationship - something a homophobic artist might not wish to facilitate.

What result, Eugene? Does the artist have a First Amendment right to decline to create the caricature, based on what he knows (or assumes) about two same-sex people asking him to create their caricature? Does it matter whether he knows, or merely assumes, what they'll do with it later?

NJ draws the appropriate line here, and is helpful insofar as it emphasizes the importance of the creator actually being engaged in their own "expression."

[Tim]

> "it exposes the basic problem with 303 Creative, insofar as it treats expressive works made for hire as the expressions of agents, rather than as the expressions of the principals who have hired the creators"

Was that not part of the stipulations in the case? Or did they only stipulate that it was expressive?

[SimonP]

I believe that it was part of the stipulations, yes. It's still a theoretical problem with the holding, notwithstanding being at least arguably procedurally proper.

[Tim]

I'm curious, would you apply your principal/agent reasoning to a singer-for-hire? Assuming their business met the other conditions (public accommodation, etc)?

The singer isn't the expresser, they're just an agent?

[David Nieporent]

Eugene, is that it exposes the basic problem with 303 Creative, insofar as it treats expressive works made for hire as the expressions of agents, rather than as the expressions of the principals who have hired the creators, with the sole purpose of facilitating the principals’ own expression.

This is not a problem with 303 Creative; it's a problem with your myopic view of the 1st amendment. The compelled speech doctrine does not turn merely on whose expression it originally is; it turns on who's actually doing the expressing. A school can't force students to recite the pledge of allegiance by saying, "Well, this is actually the school's expression." New Hampshire couldn't force drivers to carry around a piece of metal saying "Live free or die" by arguing, "It's the state's expression." No reasonable person would have ever assumed that a driver was personally endorsing "Live free or die" simply because the driver had that on his state-issued license plate.

[SimonP]

No one would argue, or be able to argue, in the compelled speech cases, that the compelled person is acting as the compelling person's "agent." Indeed, it would be incoherent to say so. The principal-agent relationship is the relationship that allows (in my view) the putative "expression" of the agent to be attributed solely to the principal - the same way we would do with any of the agent's other actions.

[Josh R]

The "acting as an agent" argument was adopted by the New Mexico Supreme Court in Elane Photography (they called it a "message for hire"). But, that reasoning is now precluded by 303 Creative.

On the other hand if I recall correctly, David believes the First Amendment ought to apply in more applications than required by 303 Creative. He thinks the behind-the-counter Staples representative can refuse to print your same-sex wedding announcement designed entirely by you. I believe he also thinks Staples can not allow you to print it yourself on the self-service copier. Both of those examples strike me as very wrong.

[Cheerio]

"*this* holy place"

Classic example of how context changes the meaning of a message.

There was a joke about an American telling a Soviet person about how America is so much more free because he could boldly criticize President Reagan without any punishment. The Soviet responded that he has the very same freedom (that is, to criticize President Reagan...).

[ReaderY]

Under 303 creative, the caricaturist has a First Amendment right to refuse.

In the caricaturist’s case, the painting itself is the message. So a caricaturist can unambiguously refuse to caricature a gay couple.

In the “welcome to this holy place” painting case, the place is part of the message, not just the painting.

You obviously disagree with that. But there’s nothing ambiguous or vague or impossible to implement about it.

As I’ve often mentioned on this blog, virtually all definitions and distinctions have a certain amount of gray in them. As Justice Holmes said, day and night have no sharp boundary, only shades of gray.

People are much more likely to claim the gray makes the definitions unworkable when they don’t like the definitions. You don’t like this one. But if one comes in looking at this neutrally, the exception the Supreme Court carved out is clearer and more straightforward one to define than many court-created categories.

[Josh R]

On second thought, ReaderY makes a good point: the caricature can be viewed as a message about the relationship. So, if the artist will make caricatures of gay people, even multiple gay people together, but just not a couple in a relationship, then perhaps that is protected under Creative 303.

[Josh R]

I don't think "Welcome to this holy place" is customized, so 303 Creative does not apply. However, I do think 303 Creative stands for the proposition that customized writings are automatically (in part) the expression of the artist. Yet in your hypothetical, the refusal to draw is based on the person, not the message, so 303 Creative does not apply.

[SimonP]

However, I do think 303 Creative stands for the proposition that customized writings are automatically (in part) the expression of the artist.

Then you would disagree with NJ's guidance, particularly with respect to caterer menus and website platforms where all of the creation tools are provided to users. I'm also not sure whether your use of the word "writing" is intentional here, distinguishing "expressions" that are "writings" and so (in your terms) "automatically (in part) the expression of the artist" from other symbolic "expressions" that don't employ text (e.g., hairstyles, pictures, drawings, etc.). If so, I don't believe that follows from 303 Creative, either.

Yet in your hypothetical, the refusal to draw is based on the person, not the message, so 303 Creative does not apply.

That's the point I was trying to make, yes, as a way of illustrating how Eugene's counter-example goes wrong. You don't like his counter-example, either, but I was taking it as granted for purposes of showing what else it would imply.

[Josh R]

I agree with NJ's guidance because it's not customized by the provider when the creation tools are handed over to the customer.

As an aside, I do not distinguish between writings, pictures and drawings (or music or and anything else that has received First Amendment protection in precedent). On the other hand hairstyling has not been given such protection, so it's like baking a cake (i.e., I agree with Eugene's arguments about what services are covered).

[Cheerio]

If it's not customized, then it's probably more analogous to a printer not wanting to print materials they disagree with -- not really covered by 303, as it has more to do with *propagating* speech rather than creating it.

Not sure what the caselaw is on propagation of others' speech...

[Geezer]

Once upon a time, "public accommodation" applied only to food and lodging for transients.

[Old Smokin' Egg]

The sign-painter example in Prof. Volokh's last paragraph raised a question in my mind, and I wonder whether someone more versed in the ins and outs of anti-discrimination law can address it.

Suppose a sign painter, as a means of advertising his business, offers a discount to customers who'll allow him to include the name of the business on the sign. However, he's particular about the customers to whom he offers this discount. He might, for instance, be willing to paint a sign for an adult-entertainment outlet, but would prefer not to have his name associated with that kind of business, so declines to offer them the discount.

Could our painter offer the discount to, say, a Baptist church but not to a Mormon congregation? Since he's particular about offering the discount, it certainly seems as though it's an expression of his own First Amendment-protected opinion. But it seems like that gets us into slippery-slope territory: "I'd be glad to cater your same-sex wedding, but I won't offer the thousand-dollar discount that I offer to male-female couples who'll allow me to distribute my cards."

Thoughts?

[Josh R]

It strikes me as an objection to the person because they are a Mormon, and thus not protected by Creative 303.

[Rev. Arthur L. Kirkland]

The broader, important, welcome point is that modern America's vestigial bigots and their supporters are reduced to trying to retain a few safe spaces and special privileges for bigots and bigotry, because American progress has removed those clinging to bigotry from our national mainstream.

[BadLib]

A hair salon cannot refuse to provide a customized haircut or create a customized hairstyle for a customer based on the customer's gender identity.

Although if there is a widely recognized hairstyle or coloring that is meant to communicate, and is widely understood to do so, "I'm transgender" then it would seem that the hair salon could refuse to perform that particular cut or do that coloring.

[Bob from Ohio]

"Much of this seems correct to me"

Its offered in bad faith, basically saying that the state will disregard 303 Creative.

"creative professional is not automatically exempt"

in other words: "No one will meet the 3 part test we set out. Assert your rights, we will prosecute you anyway. The Supreme Court can't catch everything."

[Toranth]

So, Bruen all over again, with the same players?

[ReaderY]

What’s “bad faith” got to do with it if it’s correct?

And it strikes me as mostly accurate so far as stating what 303 Creative actually held is concerned. The exception 303 Creative carved out really was a pretty narrow one.