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

Supreme Court briefMay 31, 2022

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NO. 21-476

IN THE

Supreme Court of the United States

303 CREATIVE LLC, A LIMITED LIABILITY COMPANY;

LORIE SMITH,

Petitioners,

AUBREY ELENIS, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF FOR WEBSITE AND GRAPHIC

DESIGNERS AS AMICI CURIAE

IN SUPPORT OF NEITHER PARTY

WILLIAM L. ESSER IV

Counsel of Record

NICHOLAS H. LEE

PARKER POE ADAMS &

BERNSTEIN LLP

620 S. Tryon Street

Suite 800

Charlotte, NC 28202

(704) 372-9000

willesser@parkerpoe.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF THE ARGUMENT ........................... 3

ARGUMENT .............................................................. 4

Websites Are the Expressive Doorways of

the Modern World. ............................................... 4

II. Custom Website and Graphic Design Is an

Artistic and Expressive Activity. ........................ 5

A. A “custom” product is materially

different than a “mass-produced”

product. .......................................................... 5

B. What is graphic design? ................................ 9

III. An Overview of the Design Process. ................. 13

A. From conception to finished design. ........... 13

B. Transforming non-custom webpages

into custom works of art. ............................ 19

IV. Custom Websites and Graphics Are

Expressive Works That Enjoy First

Amendment Protection. ..................................... 24

A. The Constitution protects expression

with or without words. ................................ 24

B. Digital expressions are constitutionally

protected. ..................................................... 26

C. Custom website and graphic design are

expressive conduct of the designer. ............ 27

D. Copyright Law supports the view that

website and graphic design constitute

artistic expression entitled to First

Amendment protection................................ 29

CONCLUSION ......................................................... 31

iii

TABLE OF AUTHORITIES

Page(s)

Cases

303 Creative LLC v. Elenis,

6 F.4th 1160 (10th Cir. 2021) ..............................28

Bleistein v. Donaldson Lithographing

Co.,

188 U.S. 239 (1903) ................................................8

Brown v. Entertainment Merchants

Ass’n,

564 U.S. 786 (2011) .................................. 14, 26, 27

Cmty. for Creative Non-Violence v. Reid,

490 U.S. 730 (1989) ........................................28, 30

Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Boston,

515 U.S. 557 (1995) ........................................25, 28

Kaplan v. California,

413 U.S. 115 (1973) ..............................................24

Masterpiece Cakeshop, Ltd. v. Colorado

C.R. Comm’n,

138 S. Ct. 1719 (2018) 1742-44

(Thomas, J., concurring in part) .........................25

Miami Herald Pub. Co. v. Tornillo,

418 U.S. 241 (1974) ........................................28, 29

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ..............................................28

Packingham v. North Carolina,

137 S. Ct. 1730 (2017)..........................................27

Reno v. American Civil Liberties Union,

521 U.S. 844 (1997) ..........................................5, 27

Rumsfeld v. F. for Acad. & Institutional

Rts., Inc.,

547 U.S. 47 (2006) ................................................29

Schad v. Borough of Mount Ephraim,

452 U.S. 61 (1981) ................................................25

Shurtleff v. City of Boston,

Massachusetts,

142 S. Ct. 1583 (2022)....................................10, 25

Star Athletica, L.L.C. v. Varsity Brands,

Inc.,

137 S. Ct. 1002 (2017)......................................9, 26

Stromberg v. People of State of Cal.,

283 U.S. 359 (1931) ..............................................25

Texas v. Johnson,

491 U.S. 397 (1989) ..........................................9, 10

Tinker v. Des Moines Independent

Comm. Sch. Dist.,

393 U.S. 503 (1969) ..............................................25

U.S. v. Perry,

146 U.S. 71 (1892) ..................................................7

United States v. Stevens,

559 U.S. 460 (2010) ..............................................24

Walker v. Texas Div., Sons of

Confederate Veterans, Inc.,

576 U.S. 200 (2015) ..............................................26

Ward v. Rock Against Racism,

491 U.S. 781 (1989) ..............................................24

Winters v. New York,

333 U.S. 507 (1948) ..............................................25

Constitutions and Statutes

U.S. Const. art. 1, § 8, cl. 8 ...................................7, 29

17 U.S.C. § 102(a)......................................................29

Other Authorities

Compendium of U.S. Copyright Office

Practices § 1006 (3d ed. 2014),

https://perma.cc/2J5M-A5VS ...............................30

David Mason, The Supreme Court’s

Bronze Doors, 63 A.B.A. J. 1395,

1397 (Oct. 1977) .....................................................6

Merriam-Webster Online Dictionary,

https://perma.cc/BGB9-ZNVY (last

updated May 24, 2022) ..........................................9

Michael Palumbo, Copyright Protection

for the Fruits of Digital Labor:

Finding Originality in Digital WireFrames, 44 New Eng. L. Rev. 127,

145 (2009) .............................................................16

Most Influential Graphic Designer of

the Past 50 Years, Graphic Design

USA, https://perma.cc/6URB-E6QZ

(last visited May 24, 2022) ..................................10

Most Influential Graphic Designer

Working Today, Graphic Design

USA, https://perma.cc/3Q4U-GYJL

(last visited May 24, 2022) ..................................10

Peter Plagens, The Font of Youth,

Newsweek, Feb. 25, 1996,

https://perma.cc/8WDZ-6TPL ..............................10

Philip B. Meggs & Alston W. Purvis,

Meggs’ History of Graphic Design

578 (6th ed. 2016) ................................................10

Webster’s Third New International

Dictionary (1986) ...............................................3, 9

INTEREST OF AMICI CURIAE1

Amici are a diverse group of custom website and

graphic designers from around the United States.

They work with individuals and with companies (both

for-profit and not-for-profit) to create customized

websites and graphics that highlight and share a

message.

Sometimes that message is about a

particular good or service that is being offered (for

sale or free of charge); other times, the message may

be simply sharing news or information to educate;

still others, the message may be to convey or

stimulate a particular emotion. The custom websites

and graphics may be shared broadly to the general

public, or only available to a discrete audience. But

regardless of how broadly the websites and graphics

are viewed or what particular message they share,

each custom website and graphic is a separately

designed work of art that expresses a message

through the creative genius of its creator.

There are many differences among amici. Some

are solo practitioners operating at a single location

while others are companies with a significant

workforce spread across multiple states. Some (like

David Carson) are known worldwide for their design

work over many decades, while others have only

recently started to hone their design skills. Amici

vary by industry served, as well as by the types of

design and marketing services provided. They vary

by race, gender, and religion. Amici also vary by

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

and no person other than amici and their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. Letters of blanket consent to the filing

of amicus briefs are filed on the docket by counsel for all parties.

ideology with some happy to create custom websites

or graphic designs for same-sex weddings (like those

at issue in this case) while others would choose not to

do so based upon their sincerely held moral or

religious convictions.

Amici do not take any position with regard to

which party should prevail in this case. Rather, their

joint interest lies in making a single point – custom

websites and graphics are expressive works of art

which reflect the voice of their creators.

Amici are:

•

Joshua Adams, Melbourne, Florida

Bop Design, Inc., San Diego, California

David

Carson

davidcarsondesign

(worldwide lecturer), New York /

California

Joseph

Carter-Brown,

Catonsville,

Maryland

Daor Design, LLC, San Antonio, Texas,

and San Francisco, California

Eclarian, LLC, Jenison, Michigan

Randy M. Ellis, Chicago, Illinois

Fear Not Studios, L.L.C., Avon, Indiana

Get Visible Inc., Phoenix, Arizona

Spence Hackney, Carolina Beach, North

Carolina

Joel Kallman, Michigan

Lform Design, LLC, Montclair, New Jersey

Joe Moss, Michigan

Palmetto

Mountain

d/b/a

iVelocity

Marketing, Saint Louis, Missouri

Proclaim Interactive, Inc., Carolina Beach,

North Carolina

•

Rock Paper Simple, Melbourne, Florida

5ivehat Agency, Chicago, Illinois

SUMMARY OF THE ARGUMENT

This case is about custom websites and graphics,

i.e., those “made or performed according to personal

order.” Custom, Webster’s Third New International

Dictionary (1986). It is not about mass-produced

products which stock a shelf or come out of a factory.

It is not about “drag and drop” software programs

which allow any person to create their own free

website without the individualized assistance of a

designer.

People seek out the help of custom

designers because they want something the designer

has that is not available through a free website

software program, namely that person’s artistic

genius and expression.

Custom website and graphic design is an art. The

very words used to describe the process of fashioning

the custom product – creating / designing – reflect

that reality. Indeed, the process of designing a

custom website or graphic is indistinguishable from

the design process involved in other forms of art, such

as sculpture, painting, music and poetry. Each art

form requires the artist to make subjective decisions

about how to communicate a certain message or

emotion to an audience, and then translate those

decisions into a particular medium.

The Court agreed to hear this case on a single

question: Whether applying a public accommodation

law to compel an artist to speak or stay silent violates

the Free Speech Clause of the First Amendment. For

amici, the key word in that question is “artist.” Amici

do not take a position on which party in this case

should prevail, or what level of scrutiny the Court

should apply in analyzing First Amendment rights.

But amici do have a keen interest in ensuring that

whichever way the Court rules, it clearly recognizes

and acknowledges that custom website and graphic

designers are artists whose expressive work is

entitled to the same treatment and protection under

the law as other artists.

ARGUMENT

Websites Are the Expressive Doorways of

the Modern World.

The façade of physical buildings, formed with

tangible materials (stone, metal, brick, mortar and

concrete), are usually the first thing a visitor to that

space sees. They convey a powerful message. In the

case of the design of the Supreme Court Building, the

massive columns and bronze doors “signify[] the

importance of the proceedings that occur within.” The

Bronze Doors: Information Sheet, Office of the

Curator, Supreme Court of the United States

(updated Sept. 10, 2021), https://perma.cc/8FDVFX62. Not only is this message conveyed through the

soaring and majestic columns and the solid materials

used, it is further emphasized through the bas-reliefs

on the Court’s bronze doors depicting important

events in the Western tradition of justice (e.g., the

acceptance of the common law or signing of the Magna

Carta). The Court’s information sheet reflects how

strongly their creator felt about those bronze doors:

“Out of all our monumental projects, spread over two

lifetimes, the Supreme Court doors are the only work

that we ever signed – that’s how important they

were.” (quote by John Donnelley, Jr., Sculptor) Id.

In a similar way, websites are the modern doorway

or entrance for many companies. Unlike physical

architecture which has limitations on the number of

people who can travel to and visit it, digital websites

and graphics are seen and viewed by a practically

unlimited audience located anywhere in the world.

See Reno v. American Civil Liberties Union, 521 U.S.

844, 853 (1997) (recognizing that the internet

“constitutes a vast platform from which to address

and hear from a worldwide audience of millions of

readers, viewers, researchers and buyers.”). That

large audience increases the importance of how the

website is designed, including its look, function, and

the experience of those who encounter it. Just as a

beautiful cover on a book can lead viewers to open it

to find out more, so a well-designed webpage can draw

the viewer in to explore further.

II.

Custom Website and Graphic Design Is an

Artistic and Expressive Activity.

A “custom” product is materially

different

than

“mass-produced”

product.

This case requires a distinction between custom

goods, and non-custom goods, i.e., those which are

mass-produced and can be purchased off the shelf.

See Pet.App.181a (noting that “[e]ach website 303

Creative designs and creates is an original,

customized creation for each client.”). Return, for

example, to the stately doors of the Supreme Court

Building. If the Court had wanted a set of doors that

were simply functional in opening and closing, it could

have obtained any standard doors from a door supply

company. Instead, the Court wanted something

unique and expressive.

The Court Building

Commission, in consultation with architect Cass

Gilbert and sculptor John Donnelly, “decided that the

building should have monumental bronze doors with

sculptured panels depicting important events in the

development of the law.” David Mason, The Supreme

Court’s Bronze Doors, 63 A.B.A. J. 1395, 1397 (Oct.

1977).

While the Commission “suggested the

important events to be depicted in the door’s panels,

the actual creation of the scenes to illustrate these

events was left primarily to Cass Gilbert and John

Donnelly.” Id.

Armed with that starting concept, the designer

and sculptor put their creative genius to work. Their

process started with research at the New York Public

Library about the historical events to incorporate in

the reliefs. Id. at 1398. They then moved to the

numerous artistic decisions involved in the design,

such as how to configure the reliefs, what figures to

show, how the figures would stand, the size of the

figures, the angle of the figures’ bodies, the clothing of

the figures, the background scenes / buildings to show

behind the figures, the type of decorative borders

surrounding each scene, the type of floral patterns

used to highlight the edging, and the type of columns

on either side of the reliefs. The sculptor then took

those designs and translated them into physical

reality through “actual clay models and subsequently

the plaster molds from which the bronze panels were

to be cast.” Id.

The beauty and expressive content of the finished

doors is unquestionable. “Through the perception of

Cass Gilbert, John Donnelly, and their advisers,

together with the unique patience, fortitude, and total

artistic skill of John Donnelly, Jr., we have in these

eight sculptured panels a unique, thoughtful, and

visible record of the development of the law from the

earliest times, indicating that the origins and

development of the law lie in discussion and debate

on important questions by educated laymen, judges,

advocates, and scholars.” Id. at 1399. The fact that

the doors also serve a functional purpose does not

make them any less works of art. See generally U.S.

v. Perry, 146 U.S. 71, 74-75 (1892) (recognizing that

“works of art” include “objects primarily designed for

a useful purpose, but made ornamental to please the

eye and gratify the taste”); U.S. Const. art. 1, § 8, cl.

8 (granting to Congress the power to promote the

“useful Arts”).

In a similar way, a person interested in obtaining

their own website can choose from either non-custom

or custom options. A non-custom website is one

typically created through a process called “drag and

drop” or “pick and plug.” It typically involves an

online software program that provides basic layout

choices and allows a person to insert their own text or

pictures in pre-selected locations on a page. Such

programs do not require any particularized skill or

training and allow anyone to set up a very basic

website in short order and at no (or very limited)

expense.

Take the example of a couple who desire a website

for their wedding. Free non-custom options abound.

A starting place could be the website theknot.com

which advertises a “Free Wedding Website Made for

You.” There, interested parties can select from one of

numerous pre-made design layouts, insert their photo

and text and Voila! – their new non-custom website is

up and running. Or if they do not like the free designs

and layouts offered on The Knot, numerous other drag

and drop wedding website layouts are available from

competitors (e.g., withjoy.com, minted.com, zola.com,

weddingwire.com, wix.com).

But some people do not want an off-the-shelf

website. They want something special and unique,

something that is tailored specifically to them and

their needs. They want the unique expression that a

custom designer offers. Pet.App.182a (the designs by

Lorie Smith are created by “drawing on her

inspiration and sense of beauty”). See also Bleistein

v. Donaldson Lithographing Co., 188 U.S. 239, 250

(1903) (recognizing that a poster design embodies “the

personal reaction of an individual upon nature.

Personality always contains something unique. It

expresses its singularity . . . which is one man’s

alone.”)

By highlighting this distinction between massproduced and custom goods, amici do not mean to

suggest that mass-produced goods cannot be artistic

or expressive. Rather, the key distinction between

the two involves the creator’s relationship to the

message. With a mass-produced good, the creator has

essentially handed over their tools (paint, brush,

easel) to the public, who can use that good to express

any message they wish. The creator is only minimally

involved in the final message, just as a paint supplier

is only minimally involved in an artist’s painting. For

a custom work, however, the designer is the one doing

the creating and is therefore an integral part of the

message. See Pet.App.182a-183a (stipulation that

Lorie Smith works closely with clients in her design

work to “express a message in a way that is pleasing

to both Ms. Smith and her clients” but “Ms. Smith

ultimately has the final say over what she does and

does not create”).

B. What is graphic design?

“Design” refers to “the arrangement of elements

that make up a work of art.” Design, Webster’s Third

New International Dictionary (1986); see e.g., Star

Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct.

1002, 1009 (2017) (“Design refers here to the

combination of details or features that go to make up

the useful article”) (cleaned up). “Graphic design”

specifically focuses upon visual elements, i.e., those

that can be experienced with sight (rather than the

other senses). See Graphic Design, Merriam-Webster

Online Dictionary, https://perma.cc/BGB9-ZNVY

(last updated May 24, 2022) (defining graphic design

as “the art or profession of using design elements

(such as typography and images) to convey

information or create an effect”); Star Athletica, 137

S. Ct. at 1009 (“graphic” means “of or pertaining to

drawing or painting”). Those visual elements include

the ones stipulated to by the parties in this case: color

schemes, fonts, font sizes, positioning, harmony,

balance, proportion, scale, space, angle, light,

complexity, and simplicity. Pet.App.182a.

Graphics are inherently expressive. As symbols,

they are a “primitive but effective way of

communicating ideas.” Texas v. Johnson, 491 U.S.

397, 405 (1989) (quoting West Virginia State Board of

Education v. Barnette, 319 U.S. 624, 632 (1943)). For

instance, using “an emblem . . . to symbolize some

system, idea, institution or personality, is a short cut

from mind to mind. Causes and nations, political

parties, lodges and ecclesiastical groups seek to knit

the loyalty of their followings to a flag or banner, a

color or design.” Id. See also Shurtleff v. City of

Boston, Massachusetts, 142 S. Ct. 1583, 1590 (2022)

(recognizing the expressive nature of a symbolic

“piece of cloth” - a flag – based upon its content,

presence and position).

Some of the most well-known graphic designs are

brands or logos. No words are needed for viewers to

understand the expressive nature of these symbols or

which companies and goods they represent:

Other graphics, like the new logo created by worldrenowned designer David Carson2 for Shift Clean

2 Amicus David Carson has been a world leader in graphic

design for decades. He has been listed as the third Most

Influential Graphic Designer Working Today, Graphic Design

USA, https://perma.cc/3Q4U-GYJL (last visited May 24, 2022),

and the sixth Most Influential Graphic Designer of the Past 50

Years, Graphic Design USA, https://perma.cc/6URB-E6QZ (last

visited May 24, 2022), while Newsweek magazine said he

“changed the public face of graphic design,” Peter Plagens, The

Font of Youth, Newsweek, Feb. 25, 1996, https://perma.cc/8WDZ6TPL. His work is included in the “bible” of graphic design

history, Philip B. Meggs & Alston W. Purvis, Meggs’ History of

Energy (a company focused on battery-powered

solutions for marine fleets) incorporate text of varying

sizes and colors, spacing and a + symbol representing

a battery’s positive terminal.

Graphic designs exist in multiple mediums,

ranging from the traditional print mediums of books,

magazines and newspapers to the more recent digital

medium of computers and the internet. Examples of

non-digital graphics (each designed by David Carson)

include:

Graphic Design 578, 653-54 (6th ed. 2016), and the permanent

collection of the London Museum of Design (among others).

Cover art for a boxed set of John Coltrane recordings:

whiskey

bottle

label

and

box.

A map of the USA for Amtrak on-board magazine:

Website design is a subset of graphic design that

exists solely in a digital medium. The digital format

allows designers to incorporate some additional

design elements not always present in a physical

medium, such as movement, navigability and

interactivity. Pet.App.182a. The digital medium also

permits incorporation of audio design elements, with

the use of sounds and videos.

III. An Overview of the Design Process.

From conception to finished design.

Custom website designers approach a design

project in much the same way as artists practicing in

more traditional, non-digital mediums. For instance,

recall the process for the designer and sculptor of the

Supreme Court doors. They first met with the

Building Commission, then conducted research, then

designed, developed and cast the doors, and finally

installed the finished product. Website designers are

no different.

In the stipulated facts of this case, the parties

describe how 303 Creative / Lorie Smith approaches a

website or graphic design project. Pet.App.181a-185a

Lorie’s process is familiar to amici who each engage

in a similar (if not entirely identical) process.3 The

following graphic (by Lform Design) reflects the

general stages in that process:

First, the designer meets with a potential

customer to determine the customer’s needs and

whether the designer’s particular skill set is a good

match for what the customer desires. Pet.App.185a

(Lorie Smith conducts a “vetting process” to

determine whether a potential customer is “a good fit

given Plaintiffs’ skills, schedule, preferences, and

workload.”). For instance, some designers develop

niche practices creating websites for a particular

industry, such as dental practices, non-profits,

3 While this process is familiar to amici, they note that the

Court has not previously addressed a case specifically dealing

with website design. Thus amici believe it is important to

describe that process in detail to assist the Court. See generally

Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 806

(2011) (Alito, J. and Roberts, C.J. concurring) (in applying First

Amendment protections to “new and rapidly evolving technology

. . . we should make every effort to understand the new

technology.”) (cleaned up)

schools, or law firms. Others develop a specialty in

websites used by a particular market segment. For

example, B2B (Business to Business) designers

specialize in websites geared toward a business

audience, rather than retail consumers. Others focus

their design skills upon UX (User Experience). If the

skill set of the custom designer is not a good fit for the

project (or the potential customer is unwilling to pay

the price for that designer’s artistry), the designer will

refer the customer to someone else. Pet.App.185a

Second, assuming the skill set matches, the

designer will then engage in research to better

understand the who, when, where, why and how of

the project. That research starts with learning more

about the customer (What’s unique about you or your

company? To whom is the website targeted? What do

you want a website to accomplish for you? If a website

is for marketing, how does it fit into your broader

marketing strategy? Do you want a logo or other

custom graphics designed as part of the project? Do

you already have a particular look, feel, or color pallet

that you have used in the past and want to

incorporate?). Research may also include competitor

analysis (What are similar people doing with their

websites?) and statistics review.

The third step of the process is the design process

itself. This is where the expression and artistic

genius of the designer fully manifests itself.

Pet.App.182a (“Although clients often have a very

basic idea of what they wish for in a graphic or a

website and sometimes offer specific suggestions, Ms.

Smith’s creative skills transform her client’s nascent

ideas into pleasing, compelling, marketable graphics

or websites conveying a message.”).

Starting with an essentially blank screen, the

designer creates “wire-frames” and “style scapes” /

mood boards.

(i) Wire-frames. “Wire-framing refers to the

process by which a three-dimensional digital object is

given structure. . . . The structure works like a

skeleton. A digital artist must create each bone of the

skeleton.” Michael Palumbo, Copyright Protection for

the Fruits of Digital Labor: Finding Originality in

Digital Wire-Frames, 44 New Eng. L. Rev. 127, 145

(2009). While a wire-frame may look like a finished

digital image, “it does not have texture or ‘skin,’ that

is, the appearance of texture or color.” Id. Here are

several examples of wire-frames:

In each, you can see that the focus is clearly upon

layout, with no concern at this stage for color, text or

tone. The wire-frame provides the building block

structure on which the rest of the website and

graphics are built.

(ii) Style scapes / Mood Boards. If a wire-frame is

the interior skeleton of the design, style scapes

(sometimes called “mood boards”) are focused on the

exterior – colors, font type, font size, images, language

tone – the skin, “feel” or “mood” of the website. Here

is an example created by Lform Design:

Note how the designer has selected artistic features

that express the seriousness and substance of this

industrial equipment supplier – darker colors, sturdy

thick style fonts, straight lines, and solid rectangular

imagery.

After obtaining customer feedback on the wireframes and style scapes, the designer then moves to

the fourth (and often most time-intensive) stage –

development. Development involves creating drafts

of the various webpages based upon the selected

layouts and style. The designer will typically create

a “sitemap,” which visually depicts how the various

webpages will link and interact with each other (or

with other third-party websites). For large projects,

there may be dozens of webpages to create and link

together. Then the designer will add additional

features such as the website menu (similar to the

index of a book), and interactive features (e.g., pop-up

boxes, animations, infographics). Some of these

features may require the designer to create their own

coding (i.e., computer programming). The designer

may also create one portion of the website which is

accessible to the public and another which is designed

solely for internal use by employees of the company

(each with their own particular feel and style).

In the fifth stage, the designer adds content (text,

graphics, audio, video) to the webpages. That content

may come from the client or may be new items created

by the designer, such as a logo, photographs, and

charts. Like 303 Creative, many website designers

add their personal signature to the webpages they

create. See Pet.App.187a (all of 303 Creative wedding

websites will say “Designed by 303Creative.com”).

These signatures proclaim to the public who the artist

is and help to attract future clientele.

Finally, once the content has been fully added, the

designer tests the website to ensure that all elements

are fully functioning and, if so, the new website is

then launched (i.e., made “accessible” to the public).

Typically, since websites are interactive, the designer

will remain engaged to provide support and updates

for the client over an extended period.4

B. Transforming non-custom webpages

into custom works of art.

This general website design process is used for

both new websites as well as redesigns of existing

websites. It fills a need for people who are no longer

satisfied with a non-custom drag and drop site, but

want a custom, artistic presence. For instance, Bop

Design was tasked with helping a nonprofit

consulting firm on a website redesign project.

4 The activities performed in each stage of the website design

process are often categorized differently by designer. For

instance, Bop Design uses the following six categories: (1)

Discovery; (2) Concept; (3) Content; (4) Design; (5) Develop; and

(6) Launch. Regardless of the titles used, the general steps taken

in the design process are similar for each website designer,

starting with meetings and research at the beginning, design

and development in the middle and website launch at the end.

Here is the former website homepage:

This website has stiff lines, lots of text, and nothing

that stands out. Now compare the redesign:

The difference is dramatic. The new webpage has a

central point of focus – the elegant dancer who evokes

an image of the arts organizations which this

consultant targeted. The amount of text is greatly

reduced and design elements added (e.g., the blocks of

varying shapes and colors imposed over the dancer).

The main words on the page are increased in size and

placed against a black background for maximum

impact. The dancer’s skirt is faded out as it meets the

text, thus drawing the picture and the text into a

harmonious balance. This new webpage expresses

elegance, refinement and culture, even without any

reference to the text on the page.

Or compare these before and after images of the

webpage for an accounting firm (also by Bop Design):

Before:

After:

The former is boxy and full of text. It does nothing

to draw the viewer in. The latter, on the other hand,

incorporates images layered on top of each other with

an intriguing window reflection, a new vibrant color

scheme, a new logo which cleverly layers the client

initials at different angles / colors, and a clean,

sophisticated look. It takes a product which looks like

a non-custom website and through custom design

makes it attractive and appealing. In other words, it

adds the art, creativity and expression of the

designer.

Or one more example of a website redesign, this

time by Get Visible for a law firm:

The former website has a non-custom feel, with

lots of text in uniform boxes. The stormy sky looks

menacing, and the lighting is dreary.

In comparison, the revised custom website is

beautiful and cheery. Gone is the mass of distracting

small text, replaced with just four words in large bold

letters announcing the firm’s main area of practice. A

new custom graphic design logo sits atop the page.

There are no more clunky text boxes, just sleek,

layered imagery. The artist has created something

new and appealing.

IV. Custom Websites and Graphics Are

Expressive Works That Enjoy First

Amendment Protection.

A. The Constitution protects expression

with or without words.

First Amendment protections are not limited to

purely written or oral speech. Rather, the Court has

held time and again that human expression, whether

with or without words, is entitled to First Amendment

protection. Protected forms of expression include:

•

Music – Ward v. Rock Against Racism, 491

U.S. 781, 790 (1989) (“Music is one of the oldest

forms of human expression” based upon “its

capacity to appeal to the intellect and to the

emotions”);

Pictures,

films,

videos,

paintings,

drawings, and engravings – Kaplan v.

California, 413 U.S. 115, 119–20 (1973); United

•

States v. Stevens, 559 U.S. 460, 468-72 (2010)

(recordings of animal cruelty);

Flags – Shurtleff v. City of Boston,

Massachusetts, 142 S. Ct. 1583, 1590 (2022) (a

“Christian flag” – “red cross on a blue field

against a white background”); Stromberg v.

People of State of Cal., 283 U.S. 359, 368-69

(1931) (red flag);

Wearing an armband – Tinker v. Des Moines

Independent Comm. Sch. Dist., 393 U.S. 503,

505 (1969);

Parades – Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Boston, 515 U.S. 557, 568-70

(1995) (“Parades are thus a form of expression,

not

just

motion,

and

the

inherent

expressiveness of marching to make a point

explains

our

cases

involving

protest

marches.”);

Magazines – Winters v. New York, 333 U.S.

507, 510 (1948) (First Amendment protects

both informing and entertaining since “[w]hat

is one man’s amusement, teaches another’s

doctrine.”);

Entertainment – Schad v. Borough of Mount

Ephraim, 452 U.S. 61, 65 (1981) (protecting

nude dancing and noting “motion pictures,

programs broadcast by radio and television,

and live entertainment, such as musical and

dramatic works fall within the First

Amendment guarantee”);

Custom wedding cakes – Masterpiece

Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138

S. Ct. 1719, 1723 (2018) 1742-44 (Thomas, J.,

concurring in part) (“[C]reation of custom

•

wedding cakes is expressive” and protected by

the First Amendment); and

Video Games – Brown 564 U.S. at 790 (2011)

(“Like the protected books, plays, and movies

that preceded them, video games communicate

ideas—and even social messages—through

many familiar literary devices (such as

characters, dialogue, plot, and music) and

through features distinctive to the medium

(such as the player’s interaction with the

virtual world). That suffices to confer First

Amendment protection.”).

The Court has also specifically recognized that

designs are expressive and therefore subject to First

Amendment analysis. For instance, in Walker v.

Texas Div., Sons of Confederate Veterans, Inc., 576

U.S. 200, 219 (2015), the Court noted that designs on

license plates (whether the “Lone Star” graphic, an

image of the World Trade Center towers, or a

proposed image of a square Confederate battle flag)

“convey the messages communicated through those

designs.” See also Star Athletica, L.L.C., 137 S. Ct. at

1012-13 (recognizing that a design on cheerleading

uniforms created by “the arrangement of colors,

shapes, stripes, and chevrons” was a “twodimensional work of art”).

B. Digital

expressions

constitutionally protected.

are

First Amendment protections also apply

regardless of the particular medium used for the

expression. “[T]he basic principles of freedom of

speech and the press, like the First Amendment’s

command, do not vary when a new and different

medium for communication appears.” Brown, 564

U.S. at 790 (quoting Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495, 503 (1952)). The Court has applied this

principle directly to online communications. See

generally Reno, 521 U.S. at 849-853 (1997) (applying

First Amendment protections to communications over

the internet as “a unique medium . . . available to

anyone, anywhere in the world”). Thus, a graphic

designer’s expressive work receives the same

Constitutional protection whether the design is

created in physical form (e.g., on the cover of a

magazine or a flag) or solely in digital form (e.g., in a

computer file or on a website). Whether created using

newsprint and ink, or the ones and zeroes of computer

coding, the design remains equally expressive. See

Packingham v. North Carolina, 137 S. Ct. 1730, 1737

(2017) (recognizing that “websites can provide

perhaps the most powerful mechanisms available to a

private citizen to make his or her voice heard.”)

C. Custom website and graphic design

are expressive conduct of the designer.

Although custom website and graphic designers

often start with a message that their customers wish

to convey, this does not detract from the designers’

own First Amendment rights or make them any less

expressive speakers in the design process. Custom

designers are not simply copy machines.

For

example, John Donnelly knew that the Court

Commission wanted bronze doors depicting scenes

about the law, but it was his expressiveness that

brought those messages to life and which remains

imbued in the doors almost a century later. Likewise,

composer John Williams’ expressive musical

brilliance is no less present in the musical score for

the Star Wars movies simply because a third party

asked him to write the score or explained how the

various themes would need to relate to the movie

characters. See generally Hurley, 515 U.S. at 568-70

(“First Amendment protection does not require a

speaker to generate, as an original matter, each item

featured in the communication.”) (cleaned up).

The court below correctly noted that the “creation

of [custom] wedding websites is pure speech.” 303

Creative LLC v. Elenis, 6 F.4th 1160, 1176 (10th Cir.

2021). Even where the “particularized message” is

not initially generated by the artist, the Court has

recognized that creator’s free speech rights. Hurley,

supra (holding that First Amendment protections

apply to parade organizers who “like a composer”

select and organize the participants of the parade to

convey a message). Just like a newspaper or

magazine, a website “is more than a passive

receptacle or conduit for news, comment, and

advertising.” Miami Herald Pub. Co. v. Tornillo, 418

U.S. 241, 258 (1974); see also New York Times Co. v.

Sullivan, 376 U.S. 254, 265-66 (1964) (holding that

advertisement selection by a newspaper is protected

speech). The website designer and graphic artist are

“intimately connected with the communication

advanced,” and as the authors of the creative work,

their artistic expression constitutes protected speech.

Hurley, 515 U.S. at 576; see also Cmty. for Creative

Non-Violence v. Reid, 490 U.S. 730, 737 (1989) (“As a

general rule, the author is the party who actually

creates the work, that is, the person who translates

an idea into a fixed, tangible expression entitled to

That protection applies

regardless of whether the artist signs their creation

(as John Donnelly did for the Court doors and 303

Creative and many amici do on each of their website

designs) or the design is left unsigned.

As shown above, unlike the builders of a location

simply serving as “a passive receptacle or conduit”

through which messages are routed, Tornillo, 418

U.S. at 258; see also Rumsfeld v. F. for Acad. &

Institutional Rts., Inc., 547 U.S. 47, 64-65 (2006),

custom website and graphic designers do much more

than merely open a door to provide a place for people

to gather or speak. A designer’s artistic work entails

much more “expressive quality” and conduct than

that “of a parade, newsletter, or the editorial page of

a newspaper,” Rumsfeld, 547 U.S. at 64, all of which

are protected expressions.

D. Copyright Law supports the view

that

website

and

graphic

design

constitute artistic expression entitled to

First Amendment protection.

The People gave Congress the power “to promote

the Progress of Science and useful Arts.” U.S. Const.

art. I, § 8, cl. 8. One way the People, through

Congress, have chosen to promote the arts is through

the Copyright Act, which protects “original works of

authorship fixed in any tangible medium of

expression, now known or later developed, from which

they can be perceived, reproduced, or otherwise

communicated, either directly or with the aid of a

machine or device.” 17 U.S.C. § 102(a). “Works of

authorship include … pictorial, graphic, and

sculptural works,” § 102(a)(5), which are defined to

include “two-dimensional … works of fine, graphic,

and applied art, photographs, prints and art

reproductions, maps, globes, charts, diagrams,

models,

and

technical

drawings,

including

architectural plans,” § 101. The author of an original

work is entitled to ownership of any copyright. See

Reid, 490 U.S. at 737 (citing and quoting § 201(a)).

Website designers and graphic artists are the

authors who translate ideas and desires into the

fixed, tangible expressions communicated on

webpages for the whole world to see. See id.

Webpages and their content can meet the definition

of original works of authorship and, therefore, may

qualify for copyright protection. See Compendium of

https://perma.cc/2J5M-A5VS. In fact, a search of

Congress Copyright Public Catalog returns over 1,300

registered copyrights.5

This reinforces the

importance society has placed on artistic works

including those “fixed” on internet websites, and it

supports the conclusion that custom webpages and

their graphics constitute artistic expression entitled

to First Amendment protection.

5 https://perma.cc/K59U-LD4F (last visited May 24, 2022).

CONCLUSION

For the foregoing reasons, this Court should make

clear in its opinion that, regardless of which party

prevails, designers of custom websites and graphics

are engaged in an expressive art and are entitled to

the same protections under the First Amendment as

artists using any other medium.

Respectfully submitted,