Creative Designer Takes Free Speech Case to SCOTUS

Jun 2, 2022

WASHINGTON, D.C. – Liberty Counsel filed an amicus brief to the U.S. Supreme Court in 303 Creative v. Elenis in support 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 accepted beliefs. The Court will likely hear the case in the upcoming 2022 term starting this fall. 

Through her business, 303 Creative, Colorado native Lorie Smith creates unique and beautiful websites for her clients. Smith named her business “303 Creative” because “303” is the Denver metro area code.

Smith serves everyone but cannot use her design skills and creativity to express messages that violate her deeply held religious beliefs. However, under Colorado’s Anti-Discrimination Act, Smith could be punished simply for offering to create websites only celebrating weddings consistent with her beliefs that marriage is between one man and one woman. 

Smith started her business in 2012 to exercise creative freedom. Yet Colorado’s law would force her to use her artistic web design skills to speak messages celebrating “same-sex marriage.” In addition, the law acts as a gag order that prevents Smith from expressing on her website the reasons why she only creates messages celebrating certain ideas. Ironically, Colorado’s public-accommodation law allows secular artists but not religious ones like Smith to make “message-based refusals.” 

Smith filed a lawsuit in 2016 in federal court. Nearly three years later, a judge issued a final ruling allowing Colorado officials to force Smith to design and publish websites promoting messages that conflict with her religious beliefs. In 2019, Smith appealed to the 10th Circuit Court of Appeals, asking it to reverse the lower court’s decision. And in July 2021, the 10th Circuit issued an unprecedented ruling upholding the Colorado law that requires her to promote messages against her conscience in violation of her First Amendment freedom. The Appeals Court said the state can force an artist to create expressive content, even if that speech violates her faith, and the more unique or custom the speech is, the more power the state must compel it. The 10th Circuit’s rationale essentially “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.” 

In September 2021, Smith asked the U.S. Supreme Court to take up her case and reverse the 10th Circuit’s ruling and protect her First Amendment rights. The High Court granted her petition in February 2022.

In the amicus brief, Liberty Counsel presents the fact that artistic expression is pure speech that is fully protected by the First Amendment and must be protected from censorship or compulsion, particularly when the message is an unpopular one. This applies even when speakers are compensated for artistic expression. The protected artistic expression includes, among other things, books, plays, films, video games, music, painting, poetry, drawings, engravings, sculptures and photography.  This also includes website creation and content as pure speech since websites can provide a powerful way for private citizens to make their voices heard. 

The Supreme Court also has noted that the First Amendment draws no distinction between the creation, the distribution, or the consumption of the speech at issue. For example, in Fields v. City of Philadelphia, the High Court ruled that “the First Amendment protects actual photos, videos, and recordings, and for this protection to have meaning the Amendment must also protect the act of creating that material.” The High Court also acknowledged that creating wedding videos involved several actions that individually might constitute conduct, such as “positioning a camera, setting up microphones, and clicking and dragging files on a computer screen” – but what was constitutionally significant was that the finished videos “are ‘media for the communication of ideas.’” 

Liberty Counsel’s amicus brief also notes that artistic expression tells a story, and “storytelling is speech.” In the case of Chelsey Nelson Photography LLC v. Louisville/Jefferson Cnty. Metro Gov't., a court granted preliminary injunctive relief to a wedding photographer who challenged a county ordinance that would have required her to photograph same-sex weddings. Reduced to its essence, the court held that the photographer was likely to succeed on the merits of her case because “photography is art;” “art is speech;” and the government cannot compel speech. 

An example of a theatrical production that conveys thought-provoking messages is Michael Frayn’s “Copenhagen,” a fictional account of an actual meeting during World War II, in which two physicists share heated words and profound thoughts about the controversial development of the atom bomb. One of the men is a scientist who is attempting to harness the power of the atom for use by Germany, and the other scientist speaks from the perspective of a Danish citizen whose country has been taken over by the Third Reich. 

In the brief, Liberty Counsel also includes the fact that books have often stirred emotions, made political statements, or sought to influence culture. Arthur Miller wrote “The Crucible” in 1953 responding in large part to the threat to civil liberties presented by those attempting to uncover communists in America. Realizing he could not write directly on the topic, he used the Salem witch trials as the backdrop to sound the alarm. As the film was being made in the mid-1990s, Mr. Miller explained that “so many practices of the Salem trials were similar to those employed by the congressional committees . . . .” 

Music also constitutes pure speech and musicals, as plays, often express societal or political messages. Like classical music, paintings convey messages, even when they contain no words. Although people may draw different meanings from the paintings, they undisputedly are protected speech according to the High Court. For example, painter Marc Chagall, known as “the quintessential Jewish artist of the 20th century, and one of the foremost visual interpreters of the Bible,” has explained that the “Bible is like an echo of nature and this secret I have tried to transmit.” His La Bible project spanned more than two decades and included 105 etchings in the series. As with any pictorial depiction of a literary piece, people will ascertain different meanings from the paintings and see the works of art from their unique perspective. 

Therefore, it is not the content of the message but the very fact of expression itself that makes artistic communication protected speech. In fact, the more controversial the message, the more important it is that the First Amendment’s protections apply. 

Liberty Counsel Founder and Chairman Mat Staver said, “The First Amendment protects creative expression, and the state cannot force individuals to convey a government-approved message against their religious beliefs. Film, theater, art, and other expressive creative expression would not exist if the government could censor the message.” 

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