Amicus Curiae Brief — 303 Creative LLC, et al., Petitioners v. Aubrey Elenis, et al.

No. 21-476

In The

Supreme Court of the United States

303 CREATIVE LLC, A LIMITED LIABILITY COMPANY;

LORIE SMITH,

Petitioners,

v.

AUBREY ELENIS, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF OF AMICI CURIAE FIRST AMENDMENT

SCHOLARS IN SUPPORT OF PETITIONERS

Edward Wenger

Counsel of Record

Shawn Toomey Sheehy

Sebastian Waisman

Holtzman Vogel Baran

Torchinsky Josefiak PLLC

15405 John Marshall Highway

Haymarket, VA 20169

(540) 341-8808

(540) 341-8809

ewenger@holtzmanvogel.com

Counsel for Amici Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST OF AMICI

CURIAE .............................................................. 1

INTRODUCTION ....................................................... 1

BACKGROUND .......................................................... 2

SUMMARY OF THE ARGUMENT ............................ 7

ARGUMENT ............................................................... 9

I.

II.

THE FIRST AMENDMENT EXISTS TO

PROTECT UNPOPULAR SPEECH. ................. 9

A.

The Original Meaning of The First

Amendment’s Free Speech Clause. ......... 10

B.

This Court’s Jurisprudence

Confirms That The First

Amendment Prohibits

Governments From Seeking To

Prohibit One Side Of The Debate

From Speaking. ........................................ 13

C.

Colorado’s Anti-Discrimination Act

Violates The Free Speech Clauses’

Fixed Star ................................................. 16

THE GOVERNMENT CANNOT

SURVIVE STRICT SCRUTINY WHEN

IT TARGETS SPEECH. ................................... 19

ii

III. THE FIRST AMENDMENT DOES NOT

LOSE ITS FORCE BECAUSE THE

SPEAKER IS RECEIVING

COMPENSATION. ........................................... 21

IV. ALLOWING THE STATE TO COMPEL

CUSTOM EXPRESSION BECAUSE

THE EXPRESSION IS UNIQUE IS

DANGEROUS AND ANATHEMA TO

THE FIRST AMENDMENT. ........................... 23

CONCLUSION .......................................................... 25

iii

TABLE OF AUTHORITIES

CASES

Alden v. Maine, 527 U.S. 706 (1999) ........................ 10

Ashcroft v. Free Speech Coalition, 535 U.S.

234 (2002).................................................... 14, 18

Bd. of Dirs. of Rotary Int'l v. Rotary Club of

Duarte, 481 U.S. 537 (1987) ............................. 24

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ....... 24

Citizens United v. FEC, 558 U.S. 310 (2010) ... 8, 9, 22

Good News Club v. Milford Central School,

533 U.S. 98 (2001) ............................................ 20

Hurley v. Irish-American Gay, Lesbian and

Bisexual Grp. of Bos., 515 U.S. 557

(1995) ........................................................ passim

Janus v. AFSCME, Council 31, 138 S. Ct.

2448 (2018)................................................ passim

Lamb’s Chapel v. Center Moriches Union Free

Sch. Dist., 508 U.S. 384 (1993)......................... 21

Matal v. Tam, 137 S. Ct. 1744 (2017)................... 9, 21

McCullen v. Coakley, 573 U.S. 464 (2014) ............... 17

McCutcheon v. FEC, 572 U.S. 185 (2014) ................ 19

iv

Nat'l Inst. of Family and Life Advocs. v.

Becerra, 138 S. Ct. 2361 (2018) ........................ 20

New York Times Co. v. Sullivan, 376 U.S. 254

(1964) .......................................................... 14, 24

Nurre v. Whitehead, 559 U.S. 1025 (2010) ............... 20

Obergefell v. Hodges, 576 U.S. 644 (2015).......... 11, 15

Police Dep't of Chicago v. Mosley, 408 U.S. 92

(1972) .................................................................. 9

R. A. V. v. St. Paul, 505 U.S. 377 (1992) .............. 9, 13

Reed v. Town of Gilbert, 576 U.S. 155

(2015) ...................................................... 9, 15, 18

Riley v. Nat'l Fed'n of Blind, 487 U.S. 781

(1988) ........................................................ passim

Roberts v. United States Jaycees, 468 U.S.,

609 (1984).......................................................... 24

Rosenberger v. Rector & Visitors of the Univ.

of Va., 515 U.S. 819 (1995) ............. 5, 7, 9, 10, 20

Rumsfeld v. Forum for Academic and

Institutional Rights, Inc., 547 U.S. 47

(2006) ................................................................ 20

Snyder v. Phelps, 562 U.S. 443 (2011)...................... 19

Thomas v. Chi. Park Dist., 534 U.S. 316

(2002) .......................................................... 11, 12

v

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622

(1994) .......................................................... 17, 20

United States v. Playboy Ent. Grp., 529 U.S.

803 (2000).................................................. passim

W. Va. State Bd. Of Educ. v. Barnette, 319

U.S. 624 (1943) ................................. 6, 14, 18, 24

STATUTES

U.S. Const. amend. I ......................................... passim

Colo. Rev. Stat. § 24-34-601(2) ................................. 17

OTHER AUTHORITIES

2 Papers of Thomas Jefferson 545 (J. Boyd ed.

1950) .................................................................. 12

4 Annals of Cong. 934 (1794) ...................................... 7

4 W. Blackstone, Commentaries on the Laws

of England 152 (1769)....................................... 11

David P. Currie, The Constitution In

Congress, The Federalist Period 17891801 (1997)........................................................ 12

James Madison, Public Opinion, National

Gazette (Dec. 19, 1791)..................................... 13

Jay Cost, James Madison’s Lessons on Free

Speech, National Review (Sept. 4, 2017,

8:00 AM) ............................................................ 13

1

STATEMENT OF INTEREST OF AMICI

CURIAE

Amici are legal scholars who have dedicated

their professional and academic careers to the study

of the First Amendment.1 Amici are law school

professors and professors of jurisprudence. Amici’s

scholarship includes the foundational principles of

the Free Speech Clause. The names and associations

of Amici are printed in an appendix following the

conclusion of this brief.

INTRODUCTION

The Tenth Circuit acknowledged that

Petitioners’ website designs constitute “pure speech”

that is “inherently expressive.” App. 20a-21a. Before

the Tenth Circuit, Colorado made clear that

Colorado’s Anti-Discrimination Act (“CADA”) is

intended to remedy an “invidious history of

discrimination” based on sexual orientation. App.

23a-24a. As the Tenth Circuit recognized, this means

that CADA’s very purpose is to eliminate 303

Creative’s and Ms. Smith’s speech from the

marketplace of ideas. App. 23a-24a.

Notwithstanding Colorado’s and the Tenth

Circuit’s recognition of CADA’s purpose—which

1 No counsel for a party authored this brief in whole or in part,

and no party, party’s counsel, or any person other than amici

curiae or their counsel contributed money intended to fund

preparation or submission of this brief. This brief is filed with

consent of the parties. All parties were given timely notice of

amici’s intent to file.

2

should spell doom for CADA—the Tenth Circuit lent

its imprimatur to Colorado’s censorship. In doing so,

the Tenth made three errors.

First, it upheld a content-based speech statute

that compels Petitioners to mouth messages about

issues of public importance with which they

disagree.

Second, in upholding Colorado’s compulsive

law, the Tenth Circuit minted an unusual and

unusually dangerous new First Amendment

principle: as expression increases in uniqueness, it

enjoys ever decreasing First Amendment protection.

Third, the Tenth Circuit upheld Colorado’s

prohibition on speech that Petitioners do want to

express.

The Tenth Circuit, therefore, now permits

Colorado to compel Ms. Smith and 303 Creative to

voice messages they do not want to say and prohibits

them from saying what they do want to say.

Left uncorrected, the Tenth Circuit’s ruling

will remain binding precedent on all district courts

within the circuit. Certiorari is warranted

BACKGROUND

As the Tenth Circuit described it, CADA

“restricts a public accommodation’s ability to refuse

to provide services based on a customer’s identity.”

App. 3a. There are two clauses at issue. First, CADA

includes an Accommodation Clause, which prohibits

3

a public accommodation from refusing “the full and

equal enjoyment” of services because of an individual

or group’s sexual orientation. See id. Second, CADA

includes a Communications Clause, which prohibits

a public accommodation from publishing any

communication indicating “that the full and equal

enjoyment of the . . . services . . .will be refused . . .

because of sexual orientation.” App. 3a-4a

(alterations in original).

Petitioners are 303 Creative, LLC and

Ms. Lorie Smith. Ms. Smith is the founder and solemember owner of 303 Creative, LLC. App. 6a.

Ms. Smith is “willing to work with all people” and is

“generally willing to create graphics or websites for

lesbian, gay, bisexual, or transgender (“LGBT”)

customers.” Id.

Ms. Smith, however, “sincerely believes . . .

that same-sex marriage conflicts with God’s will.” Id.

In the future, Ms. Smith and 303 Creative LLC

intend to offer “wedding websites that celebrate

opposite-sex marriages but intend to refuse to create

similar websites that celebrate same-sex marriage.”

Id.

The Tenth Circuit recognized that Ms. Smith’s

and 303 Creative’s objection “is based on the

message of the specific website . . . .” Id. Ms. Smith

and 303 Creative will not create a website

celebrating same-sex weddings, regardless of

whether the “customer is the same-sex couple

themselves, a heterosexual friend of the couple, or

even a disinterested wedding planner requesting a

mock-up.” App. 6a. In fact, the Parties stipulated

4

that Petitioners “are willing to work with all people

regardless of classifications such as race, creed,

sexual orientation, and gender.” App. 11a-12a. Ms.

Smith and 303 Creative also intend to publish an

explanatory statement stating that, due to

Ms. Smith’s religious convictions, she is unable to

create websites “promoting and celebrating ideas or

messages that violate [her] beliefs.” App. 7a. This

includes creating websites for “same-sex marriages

or any other marriage that is not between one man

and one woman.” Id. To create such a website would

“compromise [her] Christian witness and tell a story

about marriage that contradicts God’s true story of

marriage—the very story He is calling [her] to

promote.” Id.

When the Tenth Circuit analyzed CADA’s

Accommodation Clause, the court recognized that

Ms. Smith and 303 Creative’s creation of wedding

websites “is pure speech.” App. 20a. This is because

the website expresses “approval and celebration of

the couple’s marriage.” Id. The court found that the

“speech element is even clearer here than in Hurley

[v. Irish-American Gay, Lesbian and Bisexual Group

of Boston, Inc. 515 US 557 (1995)], because

[Petitioners] actively create each website, rather

than merely hosting customer-generated content on

[Petitioners’] online platform.” App. 21a. Further,

the court rightly recognized that 303 Creative enjoys

First Amendment protection even though it is a forprofit business. App.22a.

Next, the court acknowledged that the

Accommodation Clause “‘compels’ [Petitioners] to

create speech that celebrates same-sex marriages.”

5

App. 22a. And because the Accommodation Clause

compels speech, the court ruled that “it also works as

a content-based restriction.” App. 23a. This is

because, under CADA, Ms. Smith and 303 Creative

cannot “create websites celebrating opposite-sex

marriages, unless they also agree to serve customers

who request websites celebrating same-sex

marriages.” Id. CADA, according to the Tenth

Circuit, is content-based because it is intended to

“eliminat[e]” certain ideas and viewpoints from the

public square. Id. 23a-24a.

Despite this Court’s admonition that contentbased speech laws will rarely survive constitutional

challenge, United States v. Playboy Ent. Grp., 529

U.S. 803, 818 (2000), and that “[v]iewpoint

discrimination is . . . an egregious form of content

discrimination,” Rosenberger v. Rector & Visitors of

the Univ. of Va., 515 U.S. 819, 829 (1995), the Tenth

Circuit nonetheless upheld CADA’s Accommodation

Clause. App.24a-32a. The court observed that CADA

was enacted to serve Colorado’s compelling interest

in ensuring equal access to goods in the marketplace.

App. 24a-25a. Although Petitioners are far from the

only providers of web-design services, the court ruled

that the Accommodation Clause was narrowly

tailored because Ms. Smith and 303 Creative’s

services are not fungible and, therefore, “LGBT

consumers will never be able to obtain weddingrelated services of the same quality and nature as

those that [Petitioners] offer.” App. 28a. According to

the Tenth Circuit, granting an exemption to

Petitioners would “relegate LGBT consumers to an

inferior market because [Petitioners’] unique

services are, by definition, unavailable elsewhere.”

6

App. 28a (emphasis in original). For that reason, the

court concluded, there is no less intrusive way to

achieve Colorado’s interest. App. 28a.

As for the Communications Clause, the Tenth

Circuit ruled that because Ms. Smith and 303

Creative’s proposed speech promoted unlawful

activity,

“including

unlawful

discrimination,”

Colorado was right to prohibit it. App. 33a.

Certiorari is plainly warranted. This Court

has recognized, in one of the most celebrated

comments from a Supreme Court opinion, that the

one fixed star in the constellation of the Constitution

is that “no official, high or petty, can prescribe what

shall be orthodox in politics, nationalism, religion, or

other matters of opinion or force citizens to confess

by word or act their faith therein.” W. Va. State Bd.

Of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

Creating an inverse relationship between expressive

ingenuity and constitutional security cannot be

squared with this principle. Nor can the First

Amendment’s “fixed star” be squared with the Tenth

Circuit’s conclusion that, because Colorado has

decreed Petitioners’ desired speech illegal under

CADA’s Communication Clause, it is therefore

unprotected under the First Amendment’s Free

Speech Clause. The First Amendment does not

condone state limits on speech based upon such

circular logic. Nor can the First Amendment’s “fixed

star” be squared with the Tenth Circuit’s conclusion

that CADA’s Accommodation Clause can compel

Petitioners to voice messages that they do not

believe or wish to express.

7

Left to stand, Colorado law will continue to

compel speech by those who would otherwise dissent

from State orthodoxy, and Tenth Circuit

jurisprudence will continue to turn strict scrutiny for

purposes of the First Amendment completely upside

down. App. 24a.

SUMMARY OF THE ARGUMENT

This brief advances four points.

First, CADA’s language and purpose run

counter to the original meaning of the Free Speech

Clause of the First Amendment and this Court’s

First Amendment jurisprudence. The very purpose of

the First Amendment is to remove the Government

from the role of a censor, acting as a guardian of the

public’s minds. See Riley v. Nat’l Fed’n of Blind, 487

U.S. 781, 791 (1988). Instead, as James Madison

recognized, the First Amendment promotes the

opposite principle: “If we advert to the nature of

Republican Government, we shall find that the

censorial power is in the people over the

government, and not in the government over the

people.” 4 Annals of Cong. 934 (1794).

Second, CADA is especially egregious because

it specifically targets the content of speech and

discriminates against the speaker based upon the

speaker’s viewpoint. See Rosenberger, 515 U.S. at

829.

Third, the First Amendment’s guarantees are

not diluted because the speaker receives

compensation. See Riley, 487 U.S. at 801. The First

8

Amendment protects the free speech rights of

corporations. “It is rudimentary that [Colorado]

cannot exact as the price” of incorporating “the

forfeiture of First Amendment rights.” Citizens

United v. FEC, 558 U.S. 310, 351 (2010). But CADA

compels corporations and their individual members

to craft and disseminate messages that are contrary

to the speaker’s belief and prohibits them from

speaking what they do believe.

And fourth, by allowing Colorado to compel

expression because that expression is unique (and

uniquely in demand), the Tenth Circuit has

fabricated a novel and shockingly dangerous new

line of First Amendment jurisprudence. Custom

expression, like that of Petitioners in this case, has

more value (and should enjoy more First

Amendment protection) because it is unique. In the

Tenth Circuit’s view, however, the more distinctive a

speaker’s expression, the more justification the State

has for compelling that speaker to voice a Stateapproved message, so much so that the State can

satisfy strict scrutiny if it forces the expression of an

artist.

Because this rule has the potential to abrogate

entirely First Amendment protection for any person

who has the wherewithal to market a unique brand

of artistic expression, the Court cannot allow it to

remain in effect. This Court should therefore grant

certiorari to correct the Tenth Circuit’s egregious

error. Left uncorrected, the district courts that

comprise the Tenth Circuit are bound to apply the

Tenth Circuit’s flawed strict scrutiny analysis.

9

ARGUMENT

I.

THE FIRST AMENDMENT EXISTS TO

PROTECT UNPOPULAR SPEECH.

“Premised on a mistrust of governmental

power,” the First Amendment declares, in no

uncertain terms, Congress shall make no law

abridging the freedom of speech. Citizens United,

558 U.S. at 340; see also U.S. Const. amend. I.2 Since

the time of its ratification, the First Amendment has

always stood as a bulwark against the government

regulating “speech in ways that favor some

viewpoints or ideas at the expense of others.’” Matal

v. Tam, 137 S. Ct. 1744, 1757 (2017). Accordingly,

the government has no power “to restrict expression

because of its message, its ideas, its subject matter,

or its content.” Police Dep’t of Chicago v. Mosley, 408

U.S. 92, 95 (1972). Nor is the Government

empowered to insert itself into the marketplace of

ideas and grant license to one side of the debate to

fight freestyle, while “requiring the other to follow

Marquis of Queensberry rules.” R. A. V. v. St. Paul,

505 U.S. 377, 392 (1992). Further, the Government

“must abstain from regulating speech when the

specific motivating ideology or the opinion or

perspective of the speaker is the rationale for the

restriction.” Rosenberger, 515 U.S. at 829.

The Free Speech Clause, as an original

matter, was ratified to prevent the Government from

2 The First Amendment’s free speech guarantee applies to the

states through the Fourteenth Amendment. Reed v. Town of

Gilbert, 576 U.S. 155, 163 (2015).

10

acting as a censor. The Framers were aware of the

dangers posed to freedom of thought when the

Government inserts itself as an arbiter of what ideas

may and may not be disseminated. They envisioned

a marketplace of ideas where all ideas could be

discussed on their merits and permitted all persons

the ability to form ideas and advocate for them

freely.

By contrast, through CADA, Colorado has

inserted itself into the marketplace of ideas. Acting

not as an umpire calling balls and strikes, but rather

as a censor, Colorado targets specific speech based

on the content of the speaker’s expression. Indeed,

CADA exists for the express purpose of eliminating

certain ideas from the marketplace. App. 23a-24a.

This form of viewpoint discrimination is particularly

egregious. See Rosenberger, 515 U.S. at 829.

On matters of great public importance, CADA

compels Ms. Smith and 303 Creative to say what

they do not want to say and prohibits them from

saying what they do want to say. And the Tenth

Circuit permits this because Petitioners’ speech is

unique. CADA is therefore precisely the type of law

that the Framers sought to prohibit when crafting

the Free Speech Clause.

A. The Original Meaning of The

Amendment’s Free Speech Clause.

First

Blackstone’s four volume magnum opus,

Commentaries on the Laws of England, “constituted

the preeminent authority on English law for the

founding generation.” Alden v. Maine, 527 U.S. 706,

11

715 (1999). The Framers relied heavily upon

Blackstone for various provisions in the Constitution

and state constitutions. Obergefell v. Hodges, 576

U.S. 644, 724-25 (2015) (Thomas, J., dissenting).

Recognizing the limitations of prohibiting prior

restraints only, the Framers of the First Amendment

sought to broaden the protection of free speech.

In 16th and 17th century England,

Parliament passed licensing laws “to contain the

‘evils’ of the printing press.” Thomas v. Chi. Park

Dist., 534 U.S. 316, 320 (2002). These “licensing

laws” were the “core abuse” to which the First

Amendment was directed. Id. For example, the

“Printing Act of 1662” prescribed, among other

things, what could be printed. Id. Before publishing

a book, the author was required to submit the text to

a government official who had broad authority “to

suppress works that he found to be heretical,

seditious, schismatical, or offensive.” Id. (internal

citation and quotation marks omitted). Those

authors who dared to publish a book without prior

approval were punished. Id. Even though the

English licensing regime ended before the 18th

century began, Blackstone still “warned against the

restrictive

power

of

such

a

licenser—an

administrative official who enjoyed unconfined

authority to pass judgment on the content of speech.”

Id. (citing 4 W. Blackstone, Commentaries on the

Laws of England 152 (1769)) (internal quotation

marks omitted).

Two of the leading Framers of the

Constitution, Thomas Jefferson and James Madison,

both recognized the dangers of a government

12

inserting itself into the public square to “pass

judgment on the content of speech.” Thomas, 534

U.S. at 320 (stating that although the English

licensing system expired before this Nation’s

founding, Blackstone still expressed alarm “against

the restrictive power of such a licenser—an

administrative official who enjoyed unconfined

authority to pass judgment on the content of

speech.”) (internal quotation marks omitted). For

that reason, James Madison recognized that the

Constitution should enshrine a commitment to

fostering a free exchange of ideas.

Thomas Jefferson considered it both “sinful”

and “tyrannical” to compel an individual to pay for

the dissemination of opinions with which the

individual disagreed. Janus v. AFSCME, Council 31,

138 S. Ct. 2448, 2464 (2018) (citing A Bill for

Establishing Religious Freedom, in 2 Papers of

Thomas Jefferson 545 (J. Boyd ed. 1950). James

Madison argued that the First Amendment granted

a broad freedom of expression. In debates that

followed

the

Whiskey

Rebellion

and

the

condemnation of “certain self-created societies”

James Madison rose to the defense of free speech

and associations. See David P. Currie, The

Constitution In Congress, The Federalist Period

1789-1801, 190-91 (1997). In a December 4, 1794

letter to James Monroe, Madison rejected the idea

that the Government could stifle speech. Id. at 191

n.141. Madison stated that it was an indefensible

principle that:

[T]he Govt. may stifle all censures on

its misdoings; for if it be itself the

13

Judge it will never allow any censures

to be just, and if it can suppress

censures flowing from one lawful source

it may those flowing from any other—

from the press and from individuals as

well as from Societies.

Id. James Madison therefore recognized the

necessity of the free flow of ideas and opinions.

Madison stated that for a constitutional republic

such as the United States to thrive, therefore, the

country must encourage “a general intercourse of

sentiments” through, among other things, the

general circulation of newspapers.3

Accordingly, since 1791, the First Amendment

has acted to prevent the Government from

“proscribing speech . . . because of disapproval of the

ideas expressed.” R. A. V., 505 U.S. at 382 (internal

citations omitted).

B. This Court’s Jurisprudence Confirms

That The First Amendment Prohibits

Governments From Seeking To Prohibit

One Side Of The Debate From Speaking.

Accordingly, this Court has recognized that

the very purpose of the Bill of Rights generally, is “to

See JAMES MADISON, PUBLIC OPINION, NATIONAL GAZETTE

(Dec. 19, 1791), https://founders.archives.gov/documents/

Madison/01-14-02-0145; see also Jay Cost, James Madison’s

Lessons on Free Speech, NATIONAL REVIEW (Sept. 4, 2017, 8:00

AM), https://www.nationalreview.com/2017/09/ james-madisonfree-speech-rights-must-be-absolute-nearly/.

3

14

withdraw certain subjects from the vicissitudes of

political controversy, to place them beyond the reach

of majorities and officials and to establish them as

legal principles to be applied by the courts.”

Barnette, 319 U.S. at 638. As for the First

Amendment specifically, this Court has recognized

that the “very purpose of the First Amendment is to

foreclose

public

authority

from

assuming

guardianship of the public mind . . . ” Riley, 487 U.S.

at 791. The First Amendment prohibits the

government,

regardless

of

motive,

from

“substitute[ing] its judgment as to how best to speak

for that of the speakers and listeners . . . .” Id. The

First Amendment’s guarantee is therefore most at

risk “when the government seeks to control thought

or to justify its laws for that impermissible end.”

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253

(2002).

The Free Speech Clause of the First

Amendment is therefore committed “to the principle

that debate on public issues should be uninhibited,

robust, and wide-open, and that it may well include

vehement, caustic, and sometimes unpleasantly

sharp attacks on government and public officials.”

New York Times Co. v. Sullivan, 376 U.S. 254, 27071 (1964). The antithesis of this is the government

using its authority to mandate uniformity of opinion.

Barnette, 319 U.S. at 640-41. The Free Speech

Clause “exists precisely so that opinions and

judgments, including esthetic and moral judgments

about art and literature, can be formed, tested, and

expressed.” Playboy Ent. Grp., 529 U.S. at 818.

Judgments, including moral judgments, “are for the

15

individual to make, not for the Government to

decree . . . .” Id.

This Court has described the topics of sexual

orientation and gender identity as “sensitive political

topics” that are “undoubtedly matters of profound

value and concern to the public.” Janus, 138 S. Ct. at

2476 (internal citation and quotation marks

omitted). Debate about these issues, therefore,

“occupies the highest rung of the hierarchy of First

Amendment values and merits special protection.”

Id. (internal citation and quotation marks omitted);

see also Obergefell, 576 U.S. at 716 (Scalia, J.,

dissenting) (“Since there is no doubt whatever that

the People never decided to prohibit the limitation of

marriage to opposite-sex couples, the public debate

over same-sex marriage must be allowed to

Particularly

continue.”)

(emphasis

added).4

egregious, therefore, are those laws that restrict

speech “because of disagreement with the message

[the speech] conveys.” Reed, 576 U.S. at 164. When

the Government decides to eliminate debate on an

issue, App. 23a-24a, the Government tends to

succeed only in closing minds. Obergefell, 576 U.S. at

710 (Roberts, C.J., dissenting).

This is why content-based speech restrictions

rarely survive strict scrutiny. Playboy Ent. Grp., 529

4 This case appears to test the Obergefell majority’s assurance

that people of faith may continue to “advocate” and “teach their

views of marriage.” Obergefell, 576 U.S. at 711 (Roberts, C.J.,

dissenting) (internal quotation marks omitted); but see App.

24a (eliminating certain ideas, particularly opposition to samesex marriage, is the admitted purpose of CADA).

16

U.S. at 818. To permit content-based speech

restrictions to survive would risk the uninhibited

marketplace of ideas, risking instead regulations

“that sought to shape our unique personalities or

silence dissenting ideas.” Id.

Accordingly, the very Polaris of this Nation’s

constellation of free speech jurisprudence is that “no

official, high or petty, can prescribe what shall be

orthodox in politics, nationalism, religion, or other

matters of opinion or force citizens to confess by

word or act their faith therein.” Barnette, 319 U.S. at

642. Compelling people to salute the flag and the

pledge of allegiance, for example, invades the

intellect and soul of individuals, an area the First

Amendment “reserve[s] from all official control.” Id.

Compelling, therefore, “individuals to mouth support

for views they find objectionable violates” this

constitutional principle. Janus, 138 S. Ct. at 246364. Prohibiting speakers from speaking their desired

message because it is contrary to the Government’s

desired message is also unconstitutional.

C. Colorado’s

Anti-Discrimination

Act

Violates The Free Speech Clauses’ Fixed

Star.

The Tenth Circuit rightly acknowledged that

CADA’s Accommodation Clause compels speech and

is content based. App. 23a. The Tenth Circuit also

acknowledged that the Communication Clause is

also content based because it prohibits speech that

“expresses an intent to deny service” on, here,

religious grounds. App. 7a, 34a. CADA prohibits 303

Creative from making websites that celebrate

17

opposite-sex marriages if 303 Creative does not

make websites that celebrate same-sex marriages.

App. 23a. In fact, CADA “is intended to remedy a

long and invidious history of discrimination based on

sexual orientation.” App. 23a-24a. Accordingly, there

is a “substantial risk of excising certain ideas or

viewpoints from the public dialogue.” App. 24a

(quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 642 (1994)). The Tenth Circuit then

acknowledged that “[e]liminating such ideas is

CADA’s very purpose.” App. 24a.

This Court has previously ruled that the test

to determine if a law is content based is whether the

law requires enforcement authorities “to examine

the content of the message that is conveyed to

determine whether a violation has occurred.”

McCullen v. Coakley, 573 U.S. 464, 479 (2014). In his

dissent, Judge Tymkovich echoed this Court’s test

when describing CADA’s Communication Clause as

requiring:

[A]n arbiter to—at the very least—read

a challenged communication, . . . notice,

or advertisement to determine whether

it indicates that the full and equal

enjoyment of the public accommodation

will be refused, withheld from, or

denied an individual.

App. 74a (Tymkovich, C.J., dissenting) (alterations

in original) (quotation marks omitted) (quoting and

citing Colo. Rev. Stat. § 24-34-601(2)(a)).

18

Despite acknowledging all of this, the Tenth

Circuit majority still granted a green light to

Colorado to continue its viewpoint discrimination.

Unless corrected, Colorado is therefore permitted to

prescribe what is orthodox for public discourse and

therefore compelling people, such as 303 Creative, to

mouth support for views they find objectionable.

Barnette, 319 U.S. at 642; Janus, 138 S. Ct. at 246364; Hurley v. Irish-American Gay, Lesbian and

Bisexual Grp. of Bos., 515 U.S. 557, 579 (1995)

(stating that speech restrictions that are “used to

produce thoughts and statements acceptable to some

groups or, indeed, all people, grates on the First

Amendment, for it amounts to nothing less than a

proposal to limit speech in the service of orthodox

expression.”). Colorado is also prescribing what is

orthodox by prohibiting Ms. Smith and 303 Creative

from voicing their civil dissent. Colorado’s actions

therefore place the Free Speech Clause’s guarantee

at risk. Free Speech Coalition, 535 U.S. at 253. This

is a more “blatant” violation of the Free Speech

Clause because CADA is aimed at the specific

opinion of the speaker. Reed, 576 U.S. at 168.

Accordingly, to allow CADA’s Accommodation

Clause to stand would undercut the very purpose of

the Free Speech Clause, namely, to “foreclose public

authority from assuming guardianship of the public

mind . . . .” Riley, 487 U.S. at 791. Allowing CADA’s

Accommodation Clause and Communication Clause

to stand would risk allowing a regulation to remain

that explicitly seeks “to shape our unique

personalities [and] silence dissenting ideas.” Playboy

Ent. Grp., 529 U.S. at 818.

19

If the First Amendment’s Free Speech Clause

“protects flag burning, funeral protests, and Nazi

parades—despite the profound offense such

spectacles cause” then surely too, the Free Speech

Clause is intended to permit 303 Creative to abstain

from “mouth[ing] support for views they find

objectionable.” McCutcheon v. FEC, 572 U.S. 185,

191 (2014); Janus, 138 S. Ct. at 2463-64. Stated

differently, if the Free Speech Clause permits the

despicable and vociferous public jeering of a loved

one at their private funeral, Snyder v. Phelps, 562

U.S. 443, 460-61 (2011), then surely the Free Speech

Clause permits Ms. Smith’s civil and silent dissent

within the privacy of her conscience.

II.

THE

GOVERNMENT

CANNOT

SURVIVE STRICT SCRUTINY WHEN

IT TARGETS SPEECH.

Perhaps the most breathtaking portion of the

Tenth Circuit’s analysis is its conclusion that

“enforcing CADA as to [Petitioners’] unique services

is narrowly tailored to Colorado’s interest in

ensuring equal access to the commercial

marketplace.” App. 32a. It drew this conclusion even

though it observed that Petitioners’ “creation of

wedding websites is pure speech.” App. 20a.5 And it

did so even after observing that “[i]t is a

‘fundamental rule of protection under the First

5 See

also App 21a (Majority Op.) (“[C]reating a website,

(whether through words, pictures, or other media) implicates

[Petitioners’] unique creative talents, and is thus inherently

expressive.”).

20

Amendment, that a speaker has the autonomy to

choose the content of his own message.’” App. 19a20a. (quoting Hurley, 515 U.S. at 573 and citing

Rumsfeld v. Forum for Academic and Institutional

Rights, Inc., 547 U.S. 47, 61 (2006)). Finally, the

court drew this conclusion even while acknowledging

that the law at issue “works as a content-based

restriction.” Id. at 23a (citing Nat’l Inst. of Family

and Life Advocs. v. Becerra, 138 S. Ct. 2361, 2371

(2018)).6

Because CADA’s application to Petitioners’

business forecloses only her chosen perspective on

the question of marriage (rather than all marriagerelated speech), Colorado’s law extends beyond mere

content-based

discrimination

into

viewpoint

discrimination. Lest there be any doubt, this Court’s

jurisprudence “make[s] it perfectly clear that

discrimination against religious, as opposed to

secular, expression is viewpoint discrimination.”

Nurre v. Whitehead, 559 U.S. 1025, 1028 (2010)

(citing Good News Club v. Milford Central School,

533 U.S. 98, 106, 107 (2001)). And because viewpoint

discrimination is, according to this Court, “an

egregious

form

of

content

discrimination,”

Rosenberger, 515 U.S. at 829, it brings with it

heightened constitutional skepticism.

“‘The

First

Amendment

forbids

the

government to regulate speech in ways that favor

6 See

also App. 24a (Majority Op.) (“[T]here is more than a

‘substantial risk of excising certain ideas or viewpoints from

the public dialogue. . . . Eliminating such ideas is CADA’s very

purpose.” (quoting Turner Broad. Sys., Inc., 512 U.S. at 642).

21

some viewpoints or ideas at the expense of others.’”

Matal, 137 S. Ct. at 1757 (emphasis added) (cleaned

up) (quoting Lamb’s Chapel v. Center Moriches

Union Free Sch. Dist., 508 U.S. 384, 394 (1993).

Colorado, however, has taken it a step further

here—it has not only forbidden Petitioners from

expressing their viewpoint regarding marriage

through CADA’s Communication Clause, but has

also, through CADA’s Accommodation Clause,

compelled Petitioners to express a viewpoint that is

entirely at odds with their sincerely held religious

beliefs. It is hard to conceive of a situation more

anathema to the First Amendment’s protections

than the one at issue in this case. For this reason

alone, the Tenth Circuit’s opinion is fatally flawed.

III.

THE FIRST AMENDMENT DOES NOT

LOSE ITS FORCE BECAUSE THE

SPEAKER

IS

RECEIVING

COMPENSATION.

None of the foregoing analysis is affected by

the fact that Petitioners are members of the

economic marketplace (rather than participants

solely in the marketplace of ideas). Indeed, this

Court has foreclosed any suggestion that receiving

recompense for expressing a viewpoint means that

the expression of that viewpoint receives no (or less)

First Amendment protection. On the contrary, “it is

well settled that a speaker’s rights are not lost

merely because compensation is received; a speaker

is no less a speaker because he or she is paid to

speak.” Riley, 487 U.S. at 801. Furthermore, it is

also

“rudimentary”

in

First

Amendment

jurisprudence that a state cannot compel the

22

forfeiture of a speaker’s free speech rights as a price

for doing business in the state. See Citizens United,

558 U.S. at 351.

The Tenth Circuit, to its credit, gave lip

service to this principle. It noted that “a profit

motive” does not “transform [Petitioners’] speech

into commercial conduct,” a point advanced in the

court below by Respondent. See App. 22a. Rather,

“[t]he First Amendment’s protections against

compelled speech are “enjoyed by business

corporations generally and by ordinary people

engaged in unsophisticated expression as well as by

professional publishers.” Id. (quoting Hurley, 515

U.S. at 574).

Notwithstanding its recitation of this

principle, the court below essentially gave

Petitioners’ speech short constitutional shrift

because she is an economic market participant. As

pointed out by Chief Judge Tymkovich in dissent,

“[a]lthough the majority acknowledges that “the

commercial nature of [Petitioners’] business does not

diminish [their] speech interest, . . . the opinion then

states that this same commercial nature allows

Colorado to regulate it.” App. 77a n.8 (Tymkovich,

C.J., dissenting). In other words, the majority

pointed to Colorado’s “purportedly compelling

interest in providing market access to [Petitioners’]

website designs” and concluded that compelling her

into expression that violates her sincerely held

religious beliefs was the least restrictive way of

animating this “purportedly compelling interest.” Id.

23

This was error, and it provides additional

grounds for a certiorari grant in this case.

IV.

ALLOWING THE STATE TO COMPEL

CUSTOM EXPRESSION BECAUSE

THE EXPRESSION IS UNIQUE IS

DANGEROUS AND ANATHEMA TO

THE FIRST AMENDMENT.

The rationale relied on by the Tenth Circuit is

not merely constitutionally erroneous; it is

dangerous. In the court’s view, if an expressive

service is unique, celebrated, or imbued with

distinctive artistic talent, it enjoys less First

Amendment protection. This perverse conclusion is

based on the premise that (1) the creativity driving

the expression effectively creates a “monopoly” and

that (2) the government has an especially compelling

interest in ensuring access to the services of the

“monopoly.” “Taken to its logical end, the

government

could

regulate

the

messages

communicated by all artists, forcing them to promote

messages approved by the government in the name

of ‘ensuring access to the commercial marketplace.’”

App. 80a (Tymkovich, C.J., dissenting) (emphasis in

orginal).

In effect, this conclusion strips away First

Amendment protection from all artistic expression

that happens to be offered for sale. This doctrine, if

permitted to stand, would sending chilling

reverberations throughout the community of artists

who market their expression. And because this effect

violates an unbroken line of this Court’s precedent

24

(see, e.g., Hurley, 515 U.S. at 574, Riley, 487 U.S. at

801, Sullivan, 376 U.S. at 265-66), certiorari is all

the more warranted.

Although in some circumstances, not present

here, this Court’s jurisprudence recognizes that a

state has a compelling interest in guaranteeing that

its citizens have “equal access to publicly available

goods,” Roberts v. United States Jaycees, 468 U.S.,

609, 624 (1984), this equal-access principle has never

been used as the First Amendment cudgel that the

Tenth Circuit employed here. The First Amendment

exists to make sure that the state may not use the

machinery of government to compel uniformity of

opinion. See Barnette, 319 U.S. at 640-41. To permit

a state untrammeled access within the marketplace

of ideas would grant the power to regulate and

silence those views that the state disapproves. App.

80a (Tymkovich, C.J., dissenting). Applying state

public accommodation laws to a speaker’s message

and expressive conduct as “a means to produce

speakers free of . . . biases . . . is a decidedly fatal

objective.” Hurley, 515 U.S. at 579.

Thus, this Court does not permit state

antidiscrimination laws that “distinguish between

prohibited and permitted activity on the basis of

viewpoint.” Roberts, 468 U.S. at 623; see also Bd. of

Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481

U.S.

537,

549

(1987)

(upholding

public

accommodation law because it makes “no

distinctions on the basis of the organization’s

viewpoint.”); Boy Scouts of Am. v. Dale, 530 U.S. 640,

659 (2000) (declaring unconstitutional New Jersey’s

public accommodations law that required the boy

25

scouts to accept a scoutmaster that would

“significantly burden the organization’s right to

oppose or disfavor homosexual conduct.”).

This case is a paradigm for what may happen

when a court warps these principles. Petitioners

have dedicated their time, effort, and artistic talent

to creating unique expressive products for sale. Their

efforts have paid off (both monetarily and

artistically), and their exceptional products are in

demand. They also are compelled by their faith to

say, and to not say, certain things while

participating in their craft. The First Amendment,

and this Court’s jurisprudence, afford Petitioners the

space to create expression and market it while at the

same time adhering to their faith. The Tenth Circuit

has adopted an irrational (and breathtakingly

dangerous) principle that, the more talented and

recognizable the artist, the less the First

Amendment protects their expression, permitting

the state to compel speech the speaker disapproves

and prohibiting speech that the speaker does

approve. Under this view, then, a modern-day

Michelangelo, after painting the Sistine Chapel,

could later be forced to service a church loyal to

Martin Luther. To state this conclusion proves why

this Court’s review of the lower court’s decision is

critically important.

CONCLUSION

To protect the First Amendment’s free speech

guarantee that debate about issues of public concern

shall be robust, this Court should grant certiorari.

The First Amendment cannot sanction CADA’s

26

mandate that speakers mouth support for public

positions the speaker disapproves while prohibiting

the speaker from voicing civil dissent.

Respectfully submitted,

Oct. 28, 2021.

Edward Wenger

Counsel of Record

Shawn Toomey Sheehy

Sebastian Waisman

Holtzman Vogel Baran

Torchinsky Josefiak PLLC

15405 John Marshall Highway

Haymarket, VA 20169

(540) 341-8808

(540) 341-8809

ewenger@holtzmanvogel.com

Counsel for Amici Curiae

1a

LIST OF AMICI

APPENDIX1

Larry Alexander

Warren Distinguished Professor

University of San Diego

Helen M. Alvaré

The Robert A. Levy Endowed Chair in Law and

Liberty

Antonin Scalia Law School

Michael S. Ariens

Aloysius A. Leopold Professor of Law

St. Mary’s University School of Law

Gerard V. Bradley

Professor of Law

University of Notre Dame

Elizabeth A. Clark

Associate Director

International Center for Law and Religion Studies

Brigham Young University

Robert F. Cochran, Jr.

Louis D. Brandeis Professor of Law Emeritus

Pepperdine University School of Law

1 Institutions are listed for identification purposes only.

Opinions expressed are those of the individual amici, and not

necessarily of their affiliated institutions.

2a

Teresa S. Collett

Professor of Law

University of St. Thomas School of Law

George W. Dent, Jr.

Schott-van den Eynden Professor of Law Emeritus

Case Western Reserve University School of Law

Richard F. Duncan

Sherman S. Welpton, Jr. Professor of Law and

Warren R. Wise Professor of Law

University of Nebraska College of Law

Richard A. Epstein

Laurence A Tisch Professor of Law

NYU School of Law

Bruce P. Frohnen

Ella and Ernest Fisher Professor of Law

Ohio Northern University

Robert P. George

McCormick Professor of Jurisprudence

Princeton University

Michael W. McConnell

Richard & Frances Mallery Professor, Stanford Law

School

Director, Stanford Constitutional Law Center

Senior Fellow, Hoover Institution

Brett Scharffs

Rex E. Lee Chair and Professor of Law

Brigham Young University

3a

Maimon Schwarzschild

Professor of Law

University of San Diego

Steven D. Smith

Warren Distinguished Professor of Law

University of San Diego

Mark S. Scarberry

Professor of Law

Pepperdine University Caruso School of Law