Amicus Curiae Brief — 303 Creative LLC, et al., Petitioners v. Aubrey Elenis, et al.
Supreme Court briefAug 19, 2022
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No. 21-476
IN THE
Supreme Court of the United States
d
303 CREATIVE LLC, LORIE SMITH ,
Petitioners,
—v.—
AUBREY ELENIS , SERGIO CORDOVA , CHARLES GARCIA ,
RICHARD LEE LEWIS , JR ., MAYUKO FIEWEGER , CHERYLIN
PENISTON , JEREMY ROSS , DANIEL WARD , PHIL WEISER ,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT
BRIEF FOR AMICI CURIAE AMERICAN CIVIL
LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES
UNION OF COLORADO IN SUPPORT OF RESPONDENTS
Jennesa Calvo-Friedman
James D. Esseks
Brian Hauss
Duncan Hosie
Louise Melling
Rose Saxe
Ria Tabacco Mar
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, New York 10004
David D. Cole
Counsel of Record
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street, N.W.
Washington, D.C. 20005
(212) 549-2611
dcole@aclu.org
Mark Silverstein
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF COLORADO
303 East 17th Avenue, Suite 350
Denver, Colorado 80203
Counsel for Amici Curiae
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ................................. iii
INTEREST OF AMICI .......................................... 1
SUMMARY OF ARGUMENT ............................... 1
ARGUMENT .......................................................... 6
I.
Colorado’s Anti-Discrimination Law Does
Not Regulate Artists, But Rather
Businesses That Choose to Sell “to the
Public.”......................................................... 6
A. CADA Regulates Only Businesses that
Choose to Sell “to the Public.” ............... 7
B. 303 Creative Is Covered by CADA Only
Because It Has Chosen to Sell Its
Services “to the Public.” ....................... 10
II.
Colorado’s Antidiscrimination Law Is a
Content Neutral Regulation Directed at
Conduct, and Satisfies Intermediate
Scrutiny ..................................................... 11
A. The Relevant Question Is Not Whether
303 Creative’s Conduct Is Expressive,
But Whether the State’s Interest in
Regulating It Is Related to the
Suppression of Expression .................. 12
B. CADA’s Prohibition on Discriminatory
Sales Practices Is Unrelated to the
Suppression of Expression .................. 18
ii
C. 303 Creative’s Arguments for
Heightened Scrutiny Are Without
Merit ..................................................... 20
D. CADA Satisfies Any Level of
Scrutiny ................................................ 23
III.
Granting Businesses that Choose to Sell to
the Public a Free Speech Right to
Discriminate if Their Product Is Expressive
Is Unworkable ........................................... 25
CONCLUSION..................................................... 30
APPENDIX........................................................... 31
iii
TABLE OF AUTHORITIES
PAGE(S)
Cases
Associated Press v. NLRB,
301 U.S. 103 (1937) ............................................. 15
Associated Press v. United States,
326 U.S. 1 (1945) ................................................. 15
Bob Jones Univ. v. United States,
461 U.S. 574 (1983) ............................................. 24
Boy Scouts of Am. v. Dale,
530 U.S. 640 (2000) ..................................21, 22, 23
Brown v. Ent. Merchs. Ass’n,
564 U.S. 786 (2011) ............................................. 24
Brush & Nib Studio, LC v. City of
Phoenix,
448 P.3d 890 (Ariz. 2019) .................................... 19
Christian Legal Soc’y Chapter of the
Univ. of Cal., Hastings Coll. of the
Law v. Martinez,
561 U.S. 661 (2010) ..........................................4, 19
Clark v. Community for Creative NonViolence,
468 US 288 (1984) ............................................... 14
Expressions Hair Design v.
Schneiderman,
137 S. Ct. 1144 (2017) ......................................... 16
iv
Halton v. Great Clips, Inc.,
94 F. Supp. 2d 856 (N.D. Ohio 2000) .................. 19
Heart of Atlanta Motel, Inc. v. United
States,
379 U.S. 241 (1964) ............................................. 24
Hishon v. King & Spalding,
467 U.S. 69 (1984) ............................................4, 17
Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp. of Bos.,
515 U.S. 557 (1995) ..................................18, 21, 22
Jankey v. Twentieth Century Fox Film
Corp.,
212 F.3d 1159 (9th Cir. 2000) ............................... 8
Jenkins v. Wholesale Alley, Inc.,
No. 1:05-CV-03266-JEC, 2007 WL
9701996 (N.D. Ga. Sep. 11, 2007) ......................... 8
Legal Servs. Corp. v. Velazquez,
531 U.S. 533 (2001) ............................................. 17
Masterpiece Cakeshop, Ltd. v. Colo. C.R.
Comm’n,
138 S. Ct. 1719 (2018) ............................1, 4, 19, 25
Masterpiece Cakeshop, Ltd. v. Colo. C.R.
Comm’n,
No. 16-111, 2017 WL 3913762 ............................ 26
Masterpiece Cakeshop, Ltd. v. Colo. C.R.
Comm’n,
No. 16-111, 2017 WL 8231968 ............................ 26
v
Miami Herald Publ’g Co. v. Tornillo,
418 U.S. 241 (1974) ............................................. 15
Minneapolis Star & Tribune Co. v.
Minn. Comm’r of Revenue,
460 U.S. 575 (1983) ............................................. 15
Pittsburgh Press Co. v. Pittsburgh
Comm’n on Hum. Rels.,
413 U.S. 376 (1973) ............................................. 17
PruneYard Shopping Ctr. v. Robins,
447 U.S. 74 (1980) ............................................... 22
Roberts v. U.S. Jaycees,
468 U.S. 609 (1984) ..............................7, 19, 23, 24
Romer v. Evans,
517 U.S. 620 (1996) ..........................................5, 24
Rumsfeld v. FAIR, Inc.,
547 U.S. 47 (2006) ..............................16, 17, 18, 22
Runyon v. McCrary,
427 U.S. 160 (1976) ..........................................7, 10
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011) ............................................. 12
Sullivan v. Little Hunting Park, Inc.,
396 U.S. 229 (1969) ............................................. 10
Telescope Media Grp. v. Lucero,
936 F.3d 740 (8th Cir. 2019) ............................... 20
Texas v. Johnson,
491 U.S. 397 (1989) ............................................. 15
vi
United States v. O’Brien,
391 U.S. 367 (1968) ....................................3, 13, 15
W. Va. St. Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ........................................11, 13
Constitution and Statutes
U.S. Const., amd. I ............................................. passim
42 U.S.C. § 2000a(e), Civil Rights Act
Title II .................................................................... 8
Colo. Rev. Stat. Ann. § 24–34–601(1)
(West 2021) .........................................................7, 8
Colo. Rev. Stat. Ann. § 24–34–601(2)(a)
(West 2021) .......................................................... 16
Colorado Anti-Discrimination Act
(“CADA”) ....................................................... passim
Mont. Code Ann. § 49-2-101(20)(b) ............................ 8
Other Authorities
1-800flowers.com,
https://perma.cc/6HFA-EQF7.............................. 27
14 C.J.S. Civil Rights § 96 (2022)............................... 8
BelovedPrintShop, Etsy,
https://perma.cc/999J-ATT4 ................................ 28
Cookillu, Etsy, https://perma.cc/E9GX2DSM ................................................................... 27
vii
Deloitte, Made-to-order: The rise of mass
personalization Deloitte, Made-toorder: The rise of mass
personalization, Deloitte Consumer
Review (2019),
https://www2.deloitte.com/content/da
m/Deloitte/ch/Documents/consumerbusiness/ch-en-consumer-businessmade-to-order-consumer-review.pdf ................... 27
EvermoreSigns, Etsy,
https://perma.cc/5HQR-B579 .............................. 27
Evertwin, Etsy, https://perma.cc/MZQ83S3H..................................................................... 27
FortisFinds, Etsy,
https://perma.cc/5UCN-EHCV ............................ 27
Aviva Freudmann, Customers Want
Customization, and Companies are
Giving it to Them, N.Y. Times (Mar.
18, 2020) https://www.nytimes.com
/2020/03/18/business/customizationpersonalized-products.html................................. 26
jamesandjosieco, Etsy,
https://perma.cc/5HKS-GJFS .............................. 28
JCPenney Portraits by Lifetouch,
https://jcpportraits.com/ (last visited
Aug. 16, 2022) ........................................................ 9
LemonBox, Zazzle,
https://perma.cc/3MU9-WNWP........................... 27
viii
Linvit, Etsy, https://perma.cc/XV247L4Z ..................................................................... 27
M&M’s, Personalizable M&M’s Just
Married Favors,
https://perma.cc/9DGT-NUKC ............................ 28
minted., https://perma.cc/K4BZ-3B8A ..................... 28
Nat’l Conf. of St. Legs., State Public
Accommodation Laws (June 25,
2021),
https://www.ncsl.org/research/civiland-criminal-justice/state-publicaccommodation-laws.aspx#1 ................................. 7
OakKnollCreations, Etsy,
https://perma.cc/92AP-NH52 .............................. 28
Weddingstar Inc., The Knot Shop
Powered By Weddingstar,
https://perma.cc/UM7D-J46C.............................. 27
1
INTEREST OF AMICI1
The American Civil Liberties Union
Foundation (ACLU) is a nationwide, nonprofit,
nonpartisan organization with nearly 2 million
members and supporters dedicated to the principles
of liberty and equality embodied in the Constitution.
The ACLU of Colorado is one of the ACLU’s
statewide affiliates. As organizations that advocate
for First Amendment liberties as well as equal rights
for lesbian, gay, bisexual, and transgender people,
the ACLU, the ACLU of Colorado, and their
members have a strong interest in the application of
proper standards when evaluating constitutional
challenges to civil rights laws. The ACLU and ACLU
of Colorado have appeared as counsel-of-record and
as amicus curiae in many cases nationwide in which
businesses challenge laws barring discrimination in
public accommodations on First Amendment
grounds, including as counsel-of-record in
Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n,
138 S. Ct. 1719 (2018).
SUMMARY OF ARGUMENT
The question presented—“[w]hether applying
a public-accommodation law to compel an artist to
speak or stay silent violates the free speech clause of
the First Amendment”—is inaccurate. Properly
framed, the question presented is whether an artist
who has chosen to open a business to the public at
1 No counsel for either party authored this brief in
whole or in part, and no person other than amici and their
counsel made any monetary contribution toward the
preparation and submission of this brief. Blanket letters of
consent to the filing of amicus briefs have been lodged by both
parties with the Clerk of Court.
2
large can constitutionally be prohibited, on the same
terms as all other public accommodations, from
discriminating against customers on the basis of a
protected characteristic.
The Colorado Anti-Discrimination Act (CADA)
does not prescribe any particular message that
artists—or anyone else—must express. If it did, the
ACLU would challenge the law as a content-based
compulsion of speech.
CADA, however, does not regulate artists as
such, but only businesses that choose to sell to the
public at large. And even as to such businesses,
CADA does not compel them to produce or sell any
particular product or service, but only requires that
they not discriminate in sales on the basis of race,
sex, sexual orientation, or other protected
characteristics. Under Colorado’s law, artists are free
not to offer their services “to the public,” and are also
free to select the goods and services they want to sell
to the public.
Many artists and writers, including those who
make a living at their craft, do not offer their services
to the public at large, and therefore are not covered
by CADA. The celebrated portrait photographer
Annie Leibovitz, or any other photographer who does
not offer their photographic services “to the public,”
would not be bound by CADA. Such artists are free to
choose their subjects on any basis they choose,
including race or sex. By contrast, a photographer
who opened a business “to the public” to take annual
school student portraits could not refuse to take
photos of Black students, even if she objected to the
public education of Black children. CADA regulates
only those who affirmatively choose to take
3
advantage of the commercial marketplace by opening
a business “to the public.” 303 Creative concedes
that it seeks to do so. It is governed by CADA only
because of that voluntary—and revocable—decision.
II. The critical inquiry is not whether 303
Creative’s website design service is expressive, but
whether Colorado’s interest in prohibiting
discrimination in sales by businesses open to the
public is “unrelated to the suppression of free
expression.” United States v. O’Brien, 391 U.S. 367,
377 (1968). As O’Brien illustrates, where the state’s
regulatory interest is unrelated to expression, the
fact that its law incidentally affects expression
triggers, at most, intermediate scrutiny. Id. No one
disputed that O’Brien’s burning of a draft card to
protest the Vietnam War was expressive. But
because the government’s interest in prohibiting
destruction of draft cards was unrelated to what any
particular act of destruction communicated,
intermediate scrutiny applied. And the result would
have been precisely the same had O’Brien burned his
draft card as performance art rather than political
protest.
Because CADA merely prohibits
discrimination in sales by businesses that choose to
sell to the public, without regard to whether a
business is “expressive” or “artistic,” it is a contentneutral regulation of commercial conduct, not a
content-based regulation of speech. Colorado’s
regulatory interest in ensuring nondiscriminatory
access to the commercial marketplace is unrelated to
the suppression of expression. CADA therefore
triggers, at most, intermediate scrutiny.
4
Laws banning discrimination are “textbook
viewpoint neutral” regulations of conduct. Christian
Legal Soc’y Chapter of the Univ. of Cal., Hastings
Coll. of the Law v. Martinez, 561 U.S. 661, 694–95
(2010). For that reason, discrimination by businesses
open to the public “has never been accorded
affirmative constitutional protections.” Hishon v.
King & Spalding, 467 U.S. 69, 78 (1984). As the
Court recently reaffirmed in a case presenting the
same First Amendment issue, “[religious and
philosophical] objections do not allow business
owners and other actors in the economy and in
society to deny protected persons equal access to
goods and services under a neutral and generally
applicable public accommodations law.” Masterpiece
Cakeshop, 138 S. Ct. at 1727.
CADA follows in that tradition. It leaves
businesses free to select the content of products or
services they sell to the public, and merely requires
them to offer those goods for sale in a
nondiscriminatory manner. Thus, under CADA, a
Christmas store may choose to sell only Christmasrelated goods, and it need not sell Hanukkah
products. But it cannot refuse to sell its Christmas
products to Jewish customers. So, too, here, 303
Creative need not offer any particular website service
to the public, but once it chooses to sell weddingwebsite design services to the public at large, it
cannot selectively decline to sell those same services
to same-sex couples.
CADA satisfies intermediate scrutiny, and
indeed would satisfy even strict scrutiny. The state’s
interest in ending invidious discrimination in the
public marketplace is compelling. It protects the
dignity of all citizens, and ensures equal opportunity
5
to participate in the “transactions and endeavors
that constitute ordinary civic life in a free society.”
Romer v. Evans, 517 U.S. 620, 631 (1996).
The law is narrowly tailored. It regulates only
businesses that choose to open “to the public,” leaving
all those who earn a living instead through personal,
individualized contracts unregulated. And it allows
those businesses it covers the freedom to choose what
products or services to sell. An exemption for any
business that might be deemed “expressive”
(theaters, bookstores, architecture firms, hair salons,
gardeners, florists, and caterers, to name just a few)
would defeat the law’s purpose.
III. 303 Creative’s proposal that businesses
should be exempt from generally applicable rules of
nondiscrimination in sales where the business’s
product or service is “expressive,” “artistic,” or
“customized,” is not merely contrary to precedent and
principle; it is also unworkable. Because an almost
limitless range of conduct can be deemed
“expressive,” “artistic,” or “customized,” 303
Creative’s proposed exemption would either swallow
the rule or impose on judges the impossible task of
assessing when a product or service is sufficiently
expressive, artistic, or customized to permit its
provider to discriminate.
If 303 Creative is correct, could a bakery that
opposed celebrating Black families refuse to sell a
birthday cake to a Black mother? Could an
architecture firm that serves the public refuse to
design homes for Muslims because it opposes their
religion? Could a test preparation business that
objected to the number of Asians in elite colleges
turn away Asian students? Could a restauranteur
6
opposed to “mixed marriage” put up a sign in its
window saying “No inter-racial or inter-faith couples
served”? 303 Creative makes no effort to answer any
of these questions.
The very unworkability of 303 Creative’s
approach underscores that the critical constitutional
inquiry is not whether the business’s product is
expressive, but whether Colorado’s interest in
proscribing discriminatory sales is unrelated to the
suppression of expression. Just as Mr. O’Brien’s
indisputably expressive act of draft card burning did
not insulate him from the equal application of the
draft card regulation, so 303 Creative is bound, like
all other businesses that choose to serve the public,
not to discriminate in its sales on invidious grounds.
ARGUMENT
I.
Colorado’s Anti-Discrimination Law
Does Not Regulate Artists, But Rather
Businesses That Choose to Sell “to the
Public.”
Petitioners portray this case as implicating the
rights of artists to paint who they want and writers
to write what they want. But that is inaccurate.
Because no artist is compelled to sell their services or
products to the public at large, the question
presented here is not whether a state can require an
artist to express a message with which they disagree.
The question, rather, is whether an artist may claim
the benefits of doing business with the general public
while refusing to abide by commercial regulations
barring discrimination in sales that apply to all
businesses open to the public.
7
A. CADA Regulates Only
Businesses that Choose to Sell
“to the Public.”
CADA governs only businesses that sell goods
or services “to the public.” Colo. Rev. Stat. Ann. §
24–34–601(1) (West 2021) (defining public
accommodation as “any place of business engaged in
any sales to the public and any place offering
services, facilities, privileges, advantages, or
accommodations to the public”) (emphasis added). As
a rule, public accommodations laws govern
“commercial relationship[s] offered generally or
widely,” and not “personal contractual
relationships…where the offeror selects those with
whom he desires to bargain on an individualized
basis, or where the contract is the foundation of a
close association and there is reason to assume that
the choice made reflects a purpose of exclusiveness.”
Runyon v. McCrary, 427 U.S. 160, 187, 189 (Powell,
J., concurring) (cleaned up); see Roberts v. U.S.
Jaycees, 468 U.S. 609, 616, 621 (1984) (explaining
that Minnesota Supreme Court found public
accommodations statute covered Jaycees because it
“is a ‘public’ business in that it solicits and recruits
dues-paying members based on unselective criteria”).
This limitation is true of public
accommodations laws generally. They are either
explicitly limited to businesses that are open to the
general public or have been so construed by state
courts.2 Most such laws apply only to a business open
“to the general public” (23 states) or “to the public”
2 See generally Nat’l Conf. of St. Legs., State Public
Accommodation Laws, (June 25, 2021),
https://www.ncsl.org/research/civil-and-criminal-justice/statepublic-accommodation-laws.aspx#1.
8
(10 states, including Colorado).3 Some states, and
the federal government in Title II of the Civil Rights
Act, instead list specific types of businesses that
qualify as a public accommodation—but what unites
the places listed is that they are open to the public.
In addition, many state laws, like Colorado’s,
expressly exempt entities generally not open to the
public, such as places principally used for religious
purposes, e.g., Colo. Rev. Stat. Ann. § 24–34–601(1)
(West 2021), or private clubs, e.g., Mont. Code Ann.
§ 49-2-101(20)(b); see also Title II of the Civil Rights
Act of 1964, 42 U.S.C. § 2000a(e).
Consequently, public accommodations laws do
not apply to businesses that have not affirmatively
chosen to serve the public at large. See, e.g., Jankey
v. Twentieth Century Fox Film Corp., 212 F.3d 1159,
1161 (9th Cir. 2000) (holding that the Americans
With Disabilities Act (“ADA”), which applies to
public accommodations, does not apply to Fox
production studio because it is an “establishment not
in fact open to the public.” (emphasis in original)
(quoting 42 U.S.C. § 2000a(e)); Jenkins v. Wholesale
Alley, Inc., No. 1:05-CV-03266-JEC, 2007 WL
9701996 (N.D. Ga. Sep. 11, 2007) (holding the ADA
does not apply to privately-owned wholesale market
that sells only to member-customers and their guests
because it was not open to the public); see generally
14 C.J.S. Civil Rights § 96 (2022) (photography
business that “was hired by certain clients but did
not offer its services to the general public … was not
[a] public accommodation, and a state’s Human
Rights Act would not apply to the business’s choice of
whom to photograph or not”).
3 See Appendix for list of state public accommodation
laws.
9
Artists who do not offer their services to the
public are therefore not governed by CADA. If
celebrity portrait photographer Annie Leibovitz, for
example, lived in Colorado, she would be entirely free
to choose the subjects of her photographs. She has
not offered for sale to the public at large the service
of taking portrait photographs, so CADA does not
apply to her choice of subjects. Nor would CADA
regulate to whom she sells her photographs, unless
she affirmatively chooses to offer them for sale “to
the public.” (If an art gallery offered her portraits for
sale to the public at large, it could not refuse a sale
because a customer was Asian or Catholic, but
Leibowitz would remain free to select her subjects as
she deemed fit).
By contrast, JCPenney Portrait Studios, which
welcomes any member of the public to schedule a
photo portrait session,4 offers its portrait services “to
the public,” and therefore may not refuse to take
portraits of customers because they are female or
male, Jewish or Catholic, Black or Asian,
heterosexual or gay. The same would be true of a
sketch artist at a street fair who offered caricature
sketches to the public at large.
Many craftsmen, artisans, and artists build a
career and earn a living without ever opening a
business to the public. They may be highly selective
about the clients from whom they accept
commissions or about the human subjects they
choose to portray. They produce work of their own
choosing. CADA does not regulate those choices at
4 JCPenney Portraits by Lifetouch,
https://jcpportraits.com/ (last visited Aug. 16, 2022).
10
all, because they are not businesses open “to the
public.”
As a result, CADA permits a sculptor who has
not offered her sculpting services to the public to cast
bronzes only of Black women. She may similarly elect
to cast only those bronzes even if she offers her final
products for sale to the general public (though she
then could not discriminate against customers
seeking to purchase her artwork). And it permits a
writer who has not offered his writing services to the
public to sell his stories only to Christian magazines.
Artists are governed by CADA and other
public accommodations laws, therefore, only if and to
the extent they affirmatively choose to sell their
services or products to the public.
B. 303 Creative Is Covered by
CADA Only Because It Has
Chosen to Sell Its Services “to
the Public.”
303 Creative concedes that its business is open
to the public. See, e.g., Pet’rs’ Br. at 37 (arguing that
303 Creative “will happily serve everyone”). Unlike
many artists, 303 Creative does not “select[] those
with whom [it] desires to bargain on an
individualized basis.” Runyon, 427 U.S. at 187
(Powell, J., concurring). It offers its services to the
public generally without a “plan or purpose of
exclusiveness.” Sullivan v. Little Hunting Park, Inc.,
396 U.S. 229, 236 (1969).
303 Creative did not need to make this choice.
CADA requires no one to open a business to the
public—or to maintain it as a public business if they
object to the generally applicable conditions for doing
so. But those who opt to avail themselves of the
11
benefits of the open market are bound by the
nondiscrimination laws that apply to all public-facing
businesses.
Petitioner Lorie Smith, as 303 Creative’s
owner, has chosen to enjoy the benefits of selling to
the public at large. Pet. App. 197a. But she remains
free to offer design services instead on a selective
basis for particular patrons. It is only because of her
voluntary—and revocable—choice to open a business
“to the public” that CADA regulates her actions at
all.
II.
Colorado’s Antidiscrimination Law is
a Content Neutral Regulation Directed
at Conduct, and Satisfies Intermediate
Scrutiny.
A law that required artists, writers, or anyone
else for that matter, to express a particular statedictated message would plainly violate the First
Amendment as a content-based regulation of speech.
W. Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624
(1943). But CADA regulates only businesses that
choose to sell to the public at large, a choice artists
and writers often do not make. And it is contentneutral; it governs only the commercial conduct of
sales to the public. It treats all businesses open “to
the public” the same, whether they sell expressive
services or products (e.g., photo printing services like
Shutterfly or bookstores like Amazon) or nonexpressive services or products (e.g., plumbing
services or hardware stores).
303 Creative’s principal argument is that it
should be treated differently than other businesses
open to the public because its website design service
is speech protected by the First Amendment. But
12
that does not follow. “[T]he First Amendment does
not prevent restrictions directed at commerce or
conduct from imposing incidental burdens on
speech,” Sorrell v. IMS Health Inc., 564 U.S. 552, 567
(2011), so long as the incidental restriction advances
an important governmental interest unrelated to
expression and burdens no more expression than
necessary to further that interest. “That is why a ban
on race-based hiring may require employers to
remove ‘White Applicants Only’ signs; why an
ordinance against outdoor fires might forbid burning
a flag; and why antitrust laws can prohibit
agreements in restraint of trade.” Id. (cleaned up).
The fact that 303 Creative’s web design service
is expressive does not insulate its sales conduct from
CADA’s regulation—any more than it would shield
the sales practices of theaters, concert halls, jewelry
design shops, dress making stores, hair salons,
architecture firms, interior decorators, educational
test preparation companies, landscape design
companies, or any other business that chooses to
offer expressive goods or services “to the public.”
A. The Relevant Question Is Not
Whether 303 Creative’s Conduct
is Expressive, But Whether the
State’s Interest in Regulating It
is Related to the Suppression of
Expression.
CADA regulates sales of any goods or services
a business chooses to offer “to the public.” Some of
those goods and services will be expressive. But
CADA regulates all businesses that serve the public
at large regardless of the character of their products
or services. Colorado’s interest in requiring
13
nondiscriminatory treatment of customers has
nothing to do with expression, but is a contentneutral, generally applicable regulation of the
commercial conduct of sales.
Where, as here, both conduct (sales) and
expression (website design) are involved, the level of
First Amendment scrutiny does not depend on
whether the business is engaged in expression, but
whether the state’s regulation is targeted at conduct
or expression. Laws that regulate conduct will often
include within their ambit some speech or expressive
conduct. A law prohibiting trespass on a government
building will bar those who seek to enter public
property to protest government policy, and a law
banning public burning will encompass those who
seek to burn a flag in protest. But one who trespasses
or engages in public burning is not immune from the
laws that bar that conduct merely because the
conduct is expressive.
United States v. O’Brien, 391 U.S. 367 (1968),
illustrates the point. There, an individual burned his
draft card to protest the Vietnam War, and objected
on First Amendment grounds when he was
prosecuted for destroying his draft card. No one
disputed that O’Brien’s conduct was expressive;
indeed, it was political expression, which receives the
First Amendment’s highest protection. Barnette, 319
U.S. at 642. But the Court focused instead on the
government’s reason for regulating, and upheld the
prosecution under intermediate scrutiny because the
government’s interest in prohibiting O’Brien’s
conduct was efficient administration of the draft, an
interest unrelated to the message communicated by
the destruction. O’Brien, 391 U.S. at 376–77 (finding
government interest “unrelated to the suppression of
14
free expression” and applying intermediate
scrutiny).
The same reasoning applied in Clark v.
Community for Creative Non-Violence, 468 US 288
(1984). There, an advocacy group sought to camp
overnight in Lafayette Park to protest the
government’s treatment of the homeless. CCNV’s
conduct was indisputably expressive. But that did
not trigger strict scrutiny or invalidate the law’s
application. Rather, because the law barring
overnight sleeping in the park served conservation
interests “unrelated to suppression of expression,”
the Court upheld the prohibition under intermediate
scrutiny. Id. at 299.
The critical inquiry, then, is not whether a
business’s act is expressive, as 303 Creative insists,
but whether the government’s interest in regulating it
is aimed at expression. If the government seeks to
regulate conduct without regard to its
communicative content (as with laws banning
destruction of draft cards or overnight sleeping in the
park), the law is content-neutral and subject to, at
most, intermediate scrutiny. If, by contrast, the
government seeks to regulate conduct because of
what it communicates, the law is content-based and
triggers strict scrutiny.
That is why the government can punish a flag
burner for violating a law banning all public burning,
but not for violating a law that bans flag desecration
in particular. The act of flag burning in both cases is
precisely the same, and equally expressive. But the
government’s interest under the former law (public
safety or air pollution) is unrelated to expression,
while its interest in the latter is inextricably tied to
15
the message expressed by burning a flag. Compare
O’Brien, 391 U.S. at 376–77 (applying intermediate
scrutiny), with Texas v. Johnson, 491 U.S. 397, 412
(1989) (applying strict scrutiny because the interest
in banning flag desecration was directly related to
what such conduct communicates). If 303 Creative’s
focus on whether the individual’s act is expressive
controlled, strict scrutiny would have applied in both
cases. It did not.
303 Creative’s contention that strict scrutiny
applies because its service is expressive is therefore
wrong. Newspaper publishers’ product, for example,
is unquestionably expressive. Yet, they can be
subject “to generally applicable economic
regulations” without violating the First Amendment.
Minneapolis Star & Tribune Co. v. Minn. Comm’r of
Revenue, 460 U.S. 575, 581 (1983). “The fact that the
publisher handles news while others handle food
does not ... afford the publisher a peculiar
constitutional sanctuary in which he can with
impunity violate laws regulating ... business
practices.” Associated Press v. United States, 326 U.S.
1, 7 (1945); Associated Press v. NLRB, 301 U.S. 103,
132 (1937).
By contrast, a law specifically requiring a
newspaper to print particular content (or forbidding
the same) would trigger strict scrutiny. See, e.g.,
Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241,
258 (1974). Even with respect to newspapers, a
quintessential object of First Amendment protection,
the critical question is not whether a business’s
product is expressive, but whether the government’s
interest in regulating is related to expression.
16
The newspaper cases also demonstrate that
303 Creative’s objection that it engages in “pure
speech,” see, e.g., Pet’rs’ Br. at 19-20, is off the mark,
for two reasons. First, CADA regulates sales, not the
content of 303 Creative’s speech, and a commercial
sale not “pure speech.” And second, as the
newspaper cases illustrate, even entities that
produce “pure speech” can be regulated where the
state’s regulatory interest is unrelated to expression.
The same principle applies to laws against
discrimination. The fact that they may incidentally
compel or restrict speech does not trigger strict
scrutiny. “Congress, for example, can prohibit
employers from discriminating in hiring on the basis
of race. The fact that this will require an employer to
take down a sign reading ‘White Applicants Only’
hardly means that the law should be analyzed as one
regulating the employer’s speech rather than
conduct.” Rumsfeld v. FAIR, Inc., 547 U.S. 47, 62
(2006). And a law requiring a restaurant to charge
$10 for sandwiches would not unconstitutionally
compel speech despite the fact that the restaurant
will “have to put ‘$10’ on its menus or have its
employees tell customers that price” because “the
law’s effect on speech would be only incidental to its
primary effect on conduct.” Expressions Hair Design
v. Schneiderman, 137 S. Ct. 1144, 1150–51 (2017).5
5 Indeed, 303 Creative acknowledges this principle.
Pet’rs’ Br. at 33–35. It concedes that if this Court rejects its
claim that the First Amendment guarantees it a right to
discriminate, it can as a constitutional matter be prohibited
from publishing discriminatory advertisements or other notices
“that indicate[] that the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of
17
In Hishon v. King & Spalding, a law firm
argued that applying Title VII to require it to
consider a woman for partnership “would infringe
[its] constitutional rights of expression or
association.” 467 U.S. 69, 78 (1984). Although law
firms plainly provide “expressive” services, and the
partnership was an act of “association,” the Court
dismissed the law firm’s First Amendment defense,
holding that there is “no constitutional right ... to
discriminate.” Id. By contrast, a law specifically
targeting a law firm’s speech by preventing it from
bringing cases that “challenge existing welfare laws,”
would “implicat[e] central First Amendment
concerns.” Legal Servs. Corp. v. Velazquez, 531 U.S.
533, 547–48 (2001).
For similar reasons, this Court rejected a First
Amendment challenge to a nondiscrimination law in
Rumsfeld v. FAIR. Law schools maintained that a
law prohibiting them from discriminating against
military recruiters would compel them to express
support for the military’s exclusion of gay and
lesbian applicants. FAIR, 547 U.S. at 52. The Court
acknowledged that law schools would be compelled to
provide assistance that “often includes elements of
speech,” including emails and bulletin notices, but
rejected FAIR’s First Amendment claim, reasoning
a place of public accommodation will be refused….,” Colo. Rev.
Stat. Ann. § 24–34–601(2)(a) (West 2021), as that restriction is
incidental to a valid limitation on conduct. Pittsburgh Press Co.
v. Pittsburgh Comm’n on Hum. Rels., 413 U.S. 376, 383–84
(1973) (upholding injunction preventing newspaper from
advertising jobs in sex-segregated columns). But the very same
reasoning, permitting regulations of conduct that incidentally
restrict expression, also dooms 303 Creative’s challenge to the
requirement that it not discriminate against customers in the
first place.
18
that, “[a]s a general matter, the [law] regulates
conduct, not speech. It affects what law schools must
do—afford equal access to military recruiters—not
what they may or may not say.” Id. at 60–61
(emphasis in original). Here, again, the Court upheld
a law that affected a business whose service is
indisputably “expressive” because the government’s
interest in nondiscrimination was unrelated to
expression.
In short, 303 Creative has it backwards.
Instead of asking whether its website design service
is expressive, the Court must ask whether Colorado’s
interest in requiring it to serve all customers equally
is related to expression. If not, at most intermediate
scrutiny applies, no matter how expressive 303
Creative’s service is.
B. CADA’s Prohibition on
Discriminatory Sales Practices
Is Unrelated to the Suppression
of Expression.
CADA, like public accommodations laws
generally, is directed at conduct, not speech. It
prohibits “the act of discriminating against
individuals in the provision of publicly available
goods, privileges, and services,” does not “target
speech or discriminate on the basis of its content,”
and therefore easily satisfies intermediate scrutiny.
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of
Bos., 515 U.S. 557, 572 (1995). The government’s
interest in preventing discrimination in access to
public accommodations is unrelated to the
suppression of expression. It applies equally to all
businesses, regardless of whether they are expressive
or not. As this Court has recognized,
19
antidiscrimination laws “do[] not aim at the
suppression of speech” and instead “reflect[] [a
state’s] strong historical commitment to eliminating
discrimination and assuring its citizens equal access
to publicly available goods and services.” See Roberts
v. U.S. Jaycees, 468 U.S. 609, 623–24 (1984);
Christian Legal Soc’y, 561 U.S. at 694–95
(antidiscrimination policies are “textbook viewpoint
neutral”).
Accordingly, just as the indisputably
expressive character of O’Brien’s draft card burning
and CCNV’s sleep-in did not trigger strict scrutiny,
neither does the expressive character of 303
Creative’s website design service.
CADA does not tell 303 Creative what kind of
design services to offer for sale or what features to
include; it leaves those content decisions to each
business. Under CADA, a Christmas shop need not
sell Hanukkah products, so long as it will sell
Christmas items to all customers. See, e.g., Halton v.
Great Clips, Inc., 94 F. Supp. 2d 856, 867 (N.D. Ohio
2000) (rejecting argument that salon had to provide
relaxers, where “relaxers were not a service they
offered to any customers,” even though “relaxers are
most often requested by African-American women”);
see also Masterpiece Cakeshop, 138 S. Ct. at 1733
(Kagan, J., concurring) (explaining that a bakery
that refused to “make a cake…that they would not
have made for any customer…. treat[s the customer]
in the same way they would have treated anyone
else—just as CADA requires”); Brush & Nib Studio,
LC v. City of Phoenix, 448 P.3d 890, 930 (Ariz. 2019)
(Bales, J., dissenting) (“A baker, for example, might
choose to sell only special-order Easter cakes
decorated with the symbol of a cross, but having
20
made that choice, the baker cannot refuse to sell
those cakes to non-Christians”).6
Thus, CADA regulates 303 Creative’s
commercial conduct—to whom it offers its services—
and not the content of its website services. And as a
result, no more than intermediate scrutiny applies.
C. 303 Creative’s Arguments for
Heightened Scrutiny Are
Without Merit.
303 Creative’s arguments for strict scrutiny
are unpersuasive. As we showed in Point II.A., supra,
its principal argument that strict scrutiny should
apply because its service is expressive is refuted by a
long line of this Court’s cases.
303 Creative’s other arguments for strict
scrutiny all rest on mischaracterizations of what
CADA does. For example, it argues that CADA is
content-based because its application is triggered by
303 Creative’s decision to sell wedding websites as
opposed to websites “promoting environmentalism.”
Pet’rs’ Br. at 32. But CADA’s application is not
6 303 Creative cannot evade the law’s dictates by recharacterizing its service as “website design for opposite-sex
weddings,” just as it could not offer to the public “website design
for white people’s weddings.” Telescope Media Grp. v. Lucero,
936 F.3d 740, 769–70 (8th Cir. 2019) (Kelly, J., concurring in
part and dissenting in part) (videographers “cannot define their
service as ‘opposite-sex wedding videos’ any more than a hotel
can recast its services as ‘whites-only lodgings.’”). If a business
has to know who a service is for to decide whether to sell it, its
decision is not about the content of the product, but about the
identity of the customer.
21
triggered by the content of any particular service. It
is triggered by the voluntary decision to offer the
service “to the public.” The environmental promotion
websites would equally be subject to CADA if the
company offered its services to the public.
Similarly, 303 Creative argues that CADA
tolerates only viewpoints that “celebrate” a same-sex
couple’s marriage. Id. at 33. But that is also wrong.
CADA does not require any business to “celebrate”
anything, no matter how that term is understood. It
is entirely agnostic as to whether businesses
“celebrate” or “condemn” marriages; it merely
requires that businesses that offer services to the
public offer the same services to all customers,
whatever those services may be.
Finally, 303 Creative invokes two cases
involving unusual applications of public
accommodations laws to noncommercial, private
associations to support its contention that strict
scrutiny applies. Id. at 20-23 (relying on Hurley and
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)). But
both cases are clearly distinguishable, and do not call
into question the general rule that states may
require businesses open to the public not to
discriminate in sales.
Hurley involved a “peculiar” application of a
public accommodation law to a privately organized
non-profit parade. 515 U.S. at 572. The Court
characterized the parade as “inherent[ly]
expressive[],” akin to “a speaker who takes to the
street corner to express his views.” Id. at 568, 572,
579. In this peculiar setting, the law’s application did
not regulate conduct with only an incidental effect on
22
expression, but directly regulated the content of the
private parade.
The circumstances here could not be more
different. 303 Creative is a business, not a private
parade; it has voluntarily chosen to solicit sales from
the public generally, not to form an exclusive
demonstration; and CADA’s application does not
alter the content of any website, but merely requires
303 Creative to offer to same-sex couples the same
service it offers to heterosexual couples. The Hurley
Court itself recognized the distinction, stressing that
the standard application of public accommodation
laws to businesses is constitutional. Id. at 572.7
Dale was a similarly peculiar case, in which
the state sought to impose a business regulation on a
nonprofit ideological association in order to directly
regulate the terms of its association. Dale, an openly
gay man, filed a discrimination complaint after he
was terminated as a scout leader of the Boy Scouts, a
private, nonprofit ideological organization that
claimed being gay was inconsistent with scouting.
Dale, 530 U.S. at 651–52. The Court expressly
7 In addition, in Hurley, there was no way for the parade
to distinguish its expression from those who marched with it.
“Parades and demonstrations…are not understood to be []
neutrally presented” and their private sponsors cannot “disavow
‘any identity of viewpoint’ between themselves and the selected
participants…. [S]uch disclaimers would be quite curious in a
moving parade.” Id. at 576–77. 303 Creative, by contrast, can
easily affix a notice to its website designs stating that it does
not endorse its customers’ messages. FAIR, 547 U.S. at 65 (law
schools free to post disclaimer that they don’t endorse military’s
policy); PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 87
(1980) (same for shopping mall owner).
23
distinguished “clearly commercial entities” from
“membership organizations such as the Boy Scouts.”
Id. at 657. To tell a private ideological association to
admit leaders who contravene its very purpose for
associating is a direct infringement of First
Amendment rights, not a regulation of conduct with
an incidental effect on expression or association.
The same cannot be said for the routine
application of a nondiscrimination requirement to
commercial sales by a business that has affirmatively
chosen to solicit sales from the public at large. As
Justice O’Connor explained in a related case
rejecting a First Amendment challenge to a public
accommodations law, “[t]he First Amendment is
offended by direct state control of the membership of
a private organization engaged exclusively in
protected expressive activity, but no First
Amendment interest stands in the way of a State’s
rational regulation of economic transactions by or
within a commercial association.” U.S. Jaycees, 468
U.S. at 638 (O’Connor, J., concurring).
Accordingly, CADA is subject to, at most,
intermediate scrutiny, which it clearly satisfies.
Indeed, as we now show, it would survive even strict
scrutiny.
D. CADA Satisfies Any Level of
Scrutiny.
The state’s interest in eliminating invidious
discrimination in the open marketplace is
compelling, and unrelated to the suppression of
ideas. See U.S. Jaycees, 468 U.S. at 623, 625
(discrimination “deprives persons of their individual
dignity and denies society the benefits of wide
participation in political, economic, and cultural
24
life”). While many take for granted equal access to
goods and services in the marketplace, members of
minority groups often cannot. The state has a
compelling interest in ensuring equal opportunity to
participate in the “transactions and endeavors that
constitute ordinary civic life in a free society.” Romer,
517 U.S. at 631.
Equally compelling is the “fundamental object”
of public accommodations laws, to “vindicate the
deprivation of personal dignity that surely
accompanies denials of equal access to public
establishments.” Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 250 (internal quotation
marks omitted); see also U.S. Jaycees, 468 U.S. at
624 (state has compelling interest in fighting
discrimination); Bob Jones Univ. v. United States,
461 U.S. 574, 604 (same).
CADA is “narrowly drawn to serve that
interest.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786,
799 (2011). It is limited to businesses that choose to
access the public marketplace. As noted above, Point
I, supra, it thereby leaves unregulated a wide array
of artists, writers, and artisans who elect not to offer
their services to the public at large, but instead to
pursue a freelance business for particular clients or
patrons. And even as to those public businesses it
does govern, CADA regulates only the conduct of
sales, affording businesses the freedom to choose
what goods or services they want to offer.
Any incidental burden these laws impose on
public accommodations that sell expressive goods
and services is no greater than necessary to vindicate
the government’s anti-discrimination interest. Where
the goal is to end discrimination in the public
25
marketplace, an exemption for all businesses that
might be deemed “expressive” (theaters, bookstores,
architecture and law firms, hairdressers, gardeners,
florists, caterers, and the like) would defeat the law’s
very purpose.
III.
Granting Businesses that Choose to
Sell to the Public a Free Speech Right
to Discriminate if Their Product is
Expressive is Unworkable.
The right that 303 Creative seeks is either
exceptionally broad or exceptionally ill-defined, or
both. It would provide carte blanche to discriminate
whenever a business’s product or service could be
characterized as “expressive.” An architecture firm,
a student portrait photography business, or any of a
wide range of other businesses offering “expressive”
services could announce that “We Do Not Serve
Blacks, Gays, or Muslims.” See Masterpiece
Cakeshop, 138 S. Ct. at 1727–29 (noting that a broad
expressive exemption would do widespread harm).
Because almost any product or service can
have expressive elements, from luggage to linens to
landscaping, the exemption 303 Creative proposes
would either swallow the rule or impose on judges
the impossible task of assessing which products and
services are sufficiently “expressive” or “artistic” to
warrant an exemption.
Counsel for 303 Creative, when previously
before this Court representing Masterpiece
Cakeshop, similarly argued that “artistic expression”
should be exempt from CADA. Br. for Pet’rs at 18,
Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n,
No. 16-111, 2017 WL 3913762. But counsel’s
exchanges with the Court at oral argument made
26
evident that this test was unworkable. See Oral Arg.
Tr. 11–19, Masterpiece Cakeshop, Ltd. v. Colo. C.R.
Comm’n, No. 16-111, 2017 WL 8231968 (asserting a
cake maker, florist, and invitation designer may be
“artists” and therefore free to discriminate, but a
hairstylist is “absolutely not,” nor is a “makeup
artist,” tailor, or chef). Counsel argued “generally
speaking, architecture would not be protected”
“because buildings are functionable, not
communicative,” and so, as Justice Breyer
incredulously asked, “Michelangelo… is not protected
when he creates the Laurentian steps, but this cake
baker is protected when he creates the cake?” Id. at
17–18. Counsel was unable to provide any principle
to meaningfully delineate which businesses are free
to discriminate and which are not.
303 Creative does not do any better here. It
argues that the exemption turns on the “expressive
quality” of the product or service, Pet’rs’ Br. at 17,
and would extend to “artists,” including “painters,
photographers, writers, graphic designers, and
musicians.” Id. at 3. And it maintains that “custom”
products should be exempt. Id. at 5, 6, 12, 19, 20, 46.
But “artistic” does no more work than “expressive” in
the constitutional analysis; surely the results in
O’Brien or Clark would not have been different had
the speakers been artists rather than political
protesters.
And an almost limitless range of products and
services may be customized.8 A “custom” exemption
8 Aviva Freudmann, Customers Want Customization,
and Companies are Giving it to Them, N.Y. Times (Mar. 18,
2020),
https://www.nytimes.com/2020/03/18/business/customization-
27
would sweep in virtually everyone who offers
individually tailored services to the public, from
tailors themselves to gardeners, house painters,
hairdressers, home designers and builders, and law
firms.
To cite just one arena, products associated
with weddings are often customized with names,
images, and wedding details, including match boxes,9
mason jar drinking glasses10 and engraved
champagne flutes,11 wedding sign-in boards,12
temporary tattoos,13 wood ring boxes,14 monogramed
wedding cake toppers,15 digital wedding
monograms,16 custom digital map drawings of the
personalized-products.html (“More and more industries and
companies are joining the mass-customization bandwagon.”);
Deloitte, Made-to-order: The rise of mass personalization, The
Deloitte Consumer Review, 2, 12 (2019),
https://www2.deloitte.com/content/dam/Deloitte/ch/Documents/c
onsumer-business/ch-en-consumer-business-made-to-orderconsumer-review.pdf (“[B]usinesses that do not incorporate an
element of personalisation into their offering risk losing
revenue and customer loyalty.”)
9 LemonBox, Zazzle, https://perma.cc/3MU9-WNWP
(“The perfect match Elegant & chic wedding matchbox”).
10 Weddingstar Inc., The Knot Shop Powered by
Weddingstar, https://perma.cc/UM7D-J46C (“Glass Mason Jar
Mugs”).
11 1-800flowers.com, https://perma.cc/6HFA-EQF7
(“Gold Hammered Engraved Wedding Champagne Flute Set”).
12 EvermoreSigns, Etsy, https://perma.cc/5HQR-B579
(“Wedding Canvas Guest Book Alternative”).
13 Cookillu, Etsy, https://perma.cc/E9GX-2DSM
(“Custom Temporary Tattoos”).
14 FortisFinds, Etsy, https://perma.cc/5UCN-EHCV
(“Custom Wedding Ring Box”).
15 Evertwin, Etsy, https://perma.cc/MZQ8-3S3H
(“Custom initials cake topper”).
16 Linvit, Etsy, https://perma.cc/XV24-7L4Z (“Wedding
Monogram”).
28
wedding venue,17 anniversary date digital prints,18
vows printed as art,19 and an engraved wooden spoon
declaring the couple to be “the perfect mix.”20 Could
all these businesses advertise their services to the
public at large but refuse to sell to inter-faith, interracial, or same-sex couples?
Even M&M’S can be customized to express a
particular message for a particular wedding. The
Personalizable M&M’S Just Married Favors “will tell
your unique love story in words, images, and a
romantic photo.”21 The candies can include a photo
of the couple, their names, or other wedding-themed
images or words. Like 303 Creative’s web designs,
the Personalizable M&M’S Just Married Favors
contain “words, images, and… photo[s],” and are
custom-designed to tell the “story” of the couple and
celebrate their marriage.22 Thus, on 303 Creative’s
theory, M&M’S would have a First Amendment right
to refuse to sell its Just Married Favors to a samesex couple. See Pet’rs’ Br. at 22–23. That result seems
absurd. But on what principle can one distinguish
between 303 Creative and M&M’S? 23
17 jamesandjosieco, Etsy, https://perma.cc/5HKS-GJFS
(“Custom Map”).
18 BelovedPrintShop, Etsy,https://perma.cc/999J-ATT4 )
(“Custom Date Print”).
19 minted., https://perma.cc/K4BZ-3B8A (“Your Vows as
an Art Print”).
20 OakKnollCreations, Etsy, https://perma.cc/92APNH52 (“Laser Engraved Wood Spoon”).
21 M&M’s, Personalizable M&M’s Just Married Favors,
https://perma.cc/9DGT-NUKC.
22 Id.
23 Professors Dale Carpenter, et al., do no better. See
Amici Br. of Carpenter, Volokh, & Shapiro at 4, 5, 18, 19. They
29
In short, an “expressive,” “artistic,” or “custom”
exemption from public accommodations laws, in
addition to being contrary to principle and precedent,
is unmanageable. And its very unworkability only
underscores that the Court has long been correct in
looking not to how “expressive” or “artistic” an
individual’s conduct is, but instead to whether the
government’s regulation is aimed at the suppression
of expression or not.
argue that businesses selling “inherently expressive” products
or services should be permitted to discriminate—a rule that
would allow, among others, newspapers, bookstores, and law
schools to discriminate on the basis of race. They acknowledge
that “[d]istinguishing expressive from non-expressive products
in some contexts might be hard.” But they then simply assert,
without reasoning, that a bakery’s cake would be expressive but
a tailor shop’s custom-made bespoke suit would not be. Like 303
Creative, they offer no administrable principle—nor any
explanation for why the plainly expressive character of
O’Brien’s draft card burning did not earn him the exemption
they support for 303 Creative.
30
CONCLUSION
The judgment of the court of appeals should be
affirmed.
August 19, 2022
Respectfully submitted,
David D. Cole
Counsel of Record
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street, N.W.
Washington, D.C. 20005
(212) 549-2611
dcole@aclu.org
Mark Silverstein
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF
COLORADO
303 East 17th Avenue, Suite 350
Denver, Colorado 80203
Jennesa Calvo-Friedman
James D. Esseks
Brian Hauss
Duncan Hosie
Louise Melling
Rose Saxe
Ria Tabacco Mar
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, New York 10004
31
APPENDIX
Alaska Stat. Ann. § 18.80.300(16) (West 2022)
(“‘public accommodation’ means a place that
caters or offers its services, goods, or facilities to
the general public”);
Ariz. Rev. Stat. Ann. § 41-1441(2) (“‘Places of
public accommodation’ means all public places of
entertainment, amusement or recreation, all
public places where food or beverages are sold for
consumption on the premises, all public places
which are conducted for the lodging of transients
or for the benefit, use or accommodation of those
seeking health or recreation and all
establishments which cater or offer their services,
facilities or goods to or solicit patronage from the
members of the general public.”);
Ark. Code Ann. § 16-123-102(7) (West 2022)
(“‘Place of public resort, accommodation,
assemblage, or amusement’ means any place,
store, or other establishment, either licensed or
unlicensed, that supplies accommodations, goods,
or services to the general public, or that solicits or
accepts the patronage or trade of the general
public”);
Conn. Gen. Stat. Ann. § 46a-63(1) (West 2022)
(“‘Place of public accommodation, resort or
amusement’ means any establishment which
caters or offers its services or facilities or goods to
the general public”);
Del. Code Ann. tit. 6, § 4502(18) (West 2022)
(“‘Place of public accommodation’ means any
establishment which caters to or offers goods or
services or facilities to, or solicits patronage from,
the general public.”);
32
Haw. Rev. Stat. Ann. § 489-2 (West 2022) (“‘Place
of public accommodation’ means a business,
accommodation, refreshment, entertainment,
recreation, or transportation facility of any kind
whose goods, services, facilities, privileges,
advantages, or accommodations are extended,
offered, sold, or otherwise made available to the
general public as customers, clients, or
visitors.”);
Ind. Code Ann. § 22-9-1-3(m) (West 2022) (“‘Public
accommodation’ means any establishment that
caters or offers its services or facilities or goods to
the general public.”);
Ky. Rev. Stat. Ann. § 344.130 (West 2022) (“‘place
of public accommodation, resort, or amusement’
includes any place, store, or other establishment,
either licensed or unlicensed, which supplies
goods or services to the general public or which
solicits or accepts the patronage or trade of the
general public or which is supported directly or
indirectly by government funds”);
La. Stat. Ann. § 51:2232(9) (2022) (“‘Place of
public accommodation, resort, or amusement’
means any place, store, or other establishment,
either licensed or unlicensed, which supplies
goods or services to the general public or which
solicits or accepts the patronage or trade of the
general public, or which is supported directly or
indirectly by government funds”);
Me. Rev. Stat. Ann. tit. 5, § 4553(8)(N) (West
2022) (“‘Place of public accommodation’ means a
facility, operated by a public or private entity,
whose operations fall within at least one of the
following categories: … Any establishment that in
fact caters to, or offers its goods, facilities or
33
services to, or solicits or accepts patronage from,
the general public.);
Mass. Gen. Laws Ann. ch. 272, § 92A (West 2022)
(“A place of public accommodation, resort or
amusement within the meaning hereof shall be
defined as and shall be deemed to include any
place, whether licensed or unlicensed, which is
open to and accepts or solicits the patronage of
the general public”);
Mo. Ann. Stat. § 213.010(16) (West 2022) (“‘Places
of public accommodation’, all places or businesses
offering or holding out to the general public,
goods, services, privileges, facilities, advantages
or accommodations for the peace, comfort, health,
welfare and safety of the general public or such
public places providing food, shelter, recreation
and amusement”);
Mont. Code Ann. § 49-2-101(20)(a) (West 2021)
(“‘Public accommodation’ means a place that
caters or offers its services, goods, or facilities to
the general public subject only to the conditions
and limitations established by law and applicable
to all persons.”);
Neb. Rev. Stat. Ann. § 20-133 (West 2022) (“As
used in sections 20-132 to 20-143, unless the
context otherwise requires, places of public
accommodation shall mean all places or
businesses offering or holding out to the general
public goods, services, privileges, facilities,
advantages, and accommodations for the peace,
comfort, health, welfare, and safety of the general
public and such public places providing food,
shelter, recreation, and amusement”);
N.H. Rev. Stat. Ann. § 354-A:2(XIV) (2018)
(“‘Place of public accommodation’ includes any
34
inn, tavern or hotel, whether conducted for
entertainment, the housing or lodging of transient
guests, or for the benefit, use or accommodations
of those seeking health, recreation or rest, any
restaurant, eating house, public conveyance on
land or water, bathhouse, barbershop, theater,
golf course, sports arena, health care provider,
and music or other public hall, store or other
establishment which caters or offers its services
or facilities or goods to the general public.”);
N.D. Cent. Code Ann. § 14-02.4-02(14) (West
2021) (“‘Public accommodation’ means every
place, establishment, or facility of whatever kind,
nature, or class that caters or offers services,
facilities, or goods to the general public for a
fee, charge, or gratuity.”);
Okla. Stat. Ann. tit. 25, § 1401(1) (West 2022)
(“‘place of public accommodation’ includes any
place, store or other establishment, either
licensed or unlicensed, which supplies goods or
services to the general public or which solicits
or accepts the patronage or trade of the general
public or which is supported directly or indirectly
by government funds”);
43 Pa. Stat. And Cons. Stat. § 954(l) (“The
term ‘public accommodation, resort or
amusement’ means any accommodation, resort or
amusement which is open to, accepts or solicits
the patronage of the general public”);
S.D. Codified Laws § 20-13-1(13) (2022) (“‘Public
accommodations,’ any place, establishment, or
facility of whatever kind, nature, or class that
caters or offers services, facilities, or goods to the
general public for a fee, charge, or
gratuitously.”);
35
Tenn. Code Ann. § 4-21-102(15) (West 2022)
(“‘Places of public accommodation, resort or
amusement’ includes any place, store or other
establishment, either licensed or unlicensed, that
supplies goods or services to the general public
or that solicits or accepts the patronage or trade
of the general public, or that is supported
directly or indirectly by government funds”);
Utah Code Ann. § 13-7-2(3)(a) (West 2022)
(“‘Place of public accommodation’ includes: (i)
every place, establishment, or facility of whatever
kind, nature, or class that caters or offers
services, facilities, or goods to the general
public for a fee or charge”);
Vt. Stat. Ann. tit. 9, § 4501(1) (West 2022) (“‘Place
of public accommodation’ means any school,
restaurant, store, establishment, or other facility
at which services, facilities, goods, privileges,
advantages, benefits, or accommodations are
offered to the general public.”);
W. Va. Code Ann. § 5-11-3(j) (West 2022) (“The
term ‘place of public accommodations’ means any
establishment or person, as defined herein,
including the state, or any political or civil
subdivision thereof, which offers its services,
goods, facilities or accommodations to the
general public”);
Idaho Code Ann. § 67-5902(9) (West 2022) (“‘Place
of public accommodation’ means a business,
accommodation, refreshment, entertainment,
recreation, or transportation facility of any kind,
whether licensed or not, whose goods, services,
facilities, privileges, advantages or
accommodations are extended, offered, sold, or
otherwise made available to the public”);
36
Kan. Stat. Ann. § 44-1002(h) (West 2022) (“‘Public
accommodations’ means any person who caters or
offers goods, services, facilities and
accommodations to the public.”);
Mich. Comp. Laws Ann. § 37.2301(a) (West 2022)
(“‘Place of public accommodation’ means a
business, or an educational, refreshment,
entertainment, recreation, health, or
transportation facility, or institution of any kind,
whether licensed or not, whose goods, services,
facilities, privileges, advantages, or
accommodations are extended, offered, sold, or
otherwise made available to the public.);
Minn. Stat. Ann. § 363A.03 Subd. 34 (West 2022)
(“‘Place of public accommodation’ means a
business, accommodation, refreshment,
entertainment, recreation, or transportation
facility of any kind, whether licensed or not,
whose goods, services, facilities, privileges,
advantages or accommodations are extended,
offered, sold, or otherwise made available to the
public.”);
Nev. Rev. Stat. Ann. § 651.050(4) (West 2022)
(“‘Place of public accommodation’ means: … (n)
Any other establishment or place to which the
public is invited or which is intended for public
use”);
N.M. Stat. Ann. § 28-1-2(H) (West 2021) (“‘public
accommodation’ means any establishment that
provides or offers its services, facilities,
accommodations or goods to the public”);
Ohio Rev. Code Ann. § 4112.01(9) (West 2022)
(“‘Place of public accommodation’ means any inn,
restaurant, eating house, barbershop, public
conveyance by air, land, or water, theater, store,
37
other place for the sale of merchandise, or any
other place of public accommodation or
amusement of which the accommodations,
advantages, facilities, or privileges are available
to the public.”);
Or. Rev. Stat. Ann. § 659A.400(1) (West 2022) (“A
place of public accommodation… means: (a) Any
place or service offering to the public
accommodations, advantages, facilities or
privileges whether in the nature of goods,
services, lodgings, amusements, transportation or
otherwise.”);
Wyo. Stat. Ann. § 6-9-101(a) (West 2022) (“All
persons of good deportment are entitled to the full
and equal enjoyment of all accommodations,
advantages, facilities and privileges of all places
or agencies which are public in nature, or which
invite the patronage of the public”).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.