Alliance Defending Freedom attorneys representing a website designer have asked the U.S. Supreme Court to review a 2-1 decision by a panel of the U.S. Court of Appeals for the 10th Circuit which concluded that the state of Colorado can force her to design and publish websites promoting messages that violate her religious beliefs. The panel majority also said that Colorado can prohibit the designer, Lorie Smith of 303 Creative, from even explaining on her company’s website which websites she can create consistent with her religious beliefs.
“The government shouldn’t weaponize the law to force a web designer to speak messages that violate her beliefs. This case involves quintessential free speech and artistic freedom, which the 10th Circuit dangerously cast aside,” said ADF General Counsel Kristen Waggoner, who argued before the 10th Circuit on behalf of Smith. “Colorado cake artist Jack Phillips has been harassed for years, and now Lorie Smith is being told that she must speak views she opposes and can’t post about her beliefs on her own business website. 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 U.S. Supreme Court to take Lorie’s case.”
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.
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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.”
“As Chief Judge Tymkovich’s dissent explained, this ruling is ‘unprecedented’ and ‘staggering’ in scope. The decision empowers the government to force everyone to speak government-approved messages and ‘subverts our core understandings of the First Amendment,’” the petition filed with the U.S. Supreme Court explains. “The decision also cements a three-way split over conflicts between free speech and laws like CADA, pitting the Tenth Circuit and several state courts of last resort against the Eighth and Eleventh Circuits and the Arizona Supreme Court. At the same time, the opinion contradicts this Court’s free-speech precedents, which have repeatedly declared as anathemas to the First Amendment all government attempts to compel speech, to regulate speech based on content, and to stamp out disfavored speech.”
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 have appealed that case to the Colorado Court of Appeals.