When Does Free Expression End and Discrimination Begin?: An Analysis of How Lower Courts have Applied the 303 Creative LLC v. Elenis Decision

by Briana James, Associate Member, University of Cincinnati Law Review Vol. 95

I. Introduction

“It is equally the inability to explain to a child that regardless of education, civility, courtesy, and morality he will be denied the right to enjoy equal treatment, even though he be a citizen of the United States and may well be called upon to lay down his life to assure this Nation continues.”¹

In 303 Creative, a public accommodations law forced the petitioner, Lorie Smith, to produce a wedding website design that inherently went against her core beliefs.² In the case, the petitioner was faced with the choice of making a website for a gay couple or facing sanctions under the Colorado Anti-Discrimination Act (“CADA”).³ While the Supreme Court ruled in Smith’s favor by analyzing the case through a First Amendment lens rather than a Fourteenth Amendment one, lower courts may now face difficulties balancing free speech and equal protection without a clear framework from the Court.⁴ To prevent injustice, the lower courts need a uniform framework for analyzing the discrimination issues that may arise from the 303 Creative ruling.

This Post argues that 303 Creative was valid in its application of First Amendment precedent but failed in establishing a narrow and uniform framework for lower courts to follow. Part II will examine the legal standards established by 303 Creative and their implications for lower courts. Part III discusses why 303 Creative leaves an overly broad framework, proposes a fourth prong to the test, and refines Justice Gorsuch’s majority opinion. Additionally, it will compare the majority opinion with Sotomayor’s dissent to examine how the majority fails to consider the discrimination implication of the test they have implemented.

This Post will then demonstrate the importance of courts being able to differentiate between conduct and expression. It will also argue that the Supreme Court must factor in a reasonable-audience standard when determining whether a service would be viewed as mere commercial conduct or as representative of the business owner’s beliefs. This Post will conclude by proposing a more mechanical test that sufficiently narrows the one provided by the majority and to ensure that 303 Creative is not used as a blanket excuse for discrimination in public spaces.

II. Background

In 303 Creative, the Supreme Court ruled that Colorado’s public accommodations law violated Lorie Smith’s First Amendment rights by compelling her to create wedding websites expressing a message that conflicted with her beliefs, denying her the “promise” to think and speak freely.⁵ The Court reversed the Tenth Circuit’s ruling, finding that speech cannot be denied for some and allowed for others based upon the message being espoused.⁶ In his majority opinion, Justice Gorsuch upheld this core principle of First Amendment precedent while Justice Sotomayor questioned its role in shielding discriminatory conduct.⁷

A. Justice Gorsuch’s Majority Opinion in 303 Creative

Justice Gorsuch authors the majority opinion and emphasizes that laws compelling speech or enforcing silence violate the First Amendment.⁸ He rests his opinion in past precedent and applies strict scrutiny to the case at hand finding that Smith’s freedom of speech triumphs over alleged discrimination claims.⁹ Relying on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., Gorsuch explains that compelled speech occurs when the government forces a speaker to express a message with which they disagree, and concludes that Colorado’s law impermissibly punished Smith for refusing to convey its preferred message.¹⁰ He establishes a three-part test, albeit largely restating the Tenth Circuit’s analysis, to determine whether commercial speech may be protected from public accommodations laws: (1) whether the commercial speech is “pure speech”; (2) whether the speech involves the business owner’s speech; and (3) whether the speech is being compelled by the government.¹¹ Pure speech is the “spoken or written word” without an action or conduct component, affording it the highest level of constitutional protection because the free flow of ideas is essential to “civil and political institutions in our society.”¹² To illustrate the scope of this reasoning, Gorsuch compares Smith’s situation to a Muslim movie director forced to make a film with Zionist messaging and an atheist muralist compelled to paint “Evangelical zeal.”¹³ Gorsuch argues that all three instances involve expressive speech and warns that such laws would chill creative professionals’ speech by forcing them to express messages contrary to their beliefs.¹⁴

Despite his critique of the Colorado law, Gorsuch does not deny the importance of public accommodations laws and describes the elimination of discrimination in public spaces as a “compelling interest.”¹⁵ Gorsuch agreed with the Tenth Circuit that Smith’s wedding websites constituted “pure speech” protected by the First Amendment.¹⁶ He also agreed that Colorado’s law is subject to strict scrutiny, which requires the government to demonstrate that the law serves a compelling government interest and is narrowly tailored to achieving that interest.¹⁷ However, while the Tenth Circuit upheld the law, Gorsuch concluded that it failed strict scrutiny because Colorado could not justify compelling Smith to express a message against her will.¹⁸

When applying strict scrutiny review, despite Gorsuch’s acceptance of preventing discrimination as a compelling interest, he concludes that Colorado’s law violates the First Amendment.¹⁹ Gorsuch explains that public accommodations laws are not “immune from the demands of the Constitution,” and an overly broad public accommodations law that compels speech is a “severe intrusion” on the freedom of speech.²⁰ Gorsuch reiterates that Smith is not selling an ordinary commercial good but is designing “customized and tailored” speech, emphasizing that Colorado’s law is no longer regulating conduct but rather it is controlling one’s freedom of expression.²¹ According to Gorsuch, Smith’s conduct is expressive and therefore it is protected under the First Amendment.²² Conduct may implicate First Amendment protections when it communicates an expressive message.²³ Gorsuch distinguishes Smith’s services from non-expressive conduct that Colorado can regulate by emphasizing that her websites constitute expressive speech.²⁴ Even though Smith expects compensation for her websites, this does not override her First Amendment protections.²⁵ Gorsuch concludes that for speech that may offend, the Constitution promises, “tolerance, not coercion,” because free thought and speech cannot be limited by merely “unattractive” speech.²⁶ Therefore, the majority reasoned, the government cannot compel Smith to express a message simply to prevent discrimination.²⁷

B. Justice Sotomayor’s Dissent in 303 Creative

Justice Sotomayor begins her dissent by situating the fight for equal access to public spaces within the broader history of the civil rights and women’s rights movements, emphasizing the ongoing struggle of gender and sexual minorities against discriminatory refusals of service.²⁸ These stories include the organized sit-in at a lunch counter in Jackson, Mississippi where Black student protestors were met with hate and vitriol all because of their symbolic protest to be allowed equal access to the public marketplace.²⁹ Her dissent admonishes the majority for disregarding precedent that would deem Smith’s conduct as Fourteenth Amendment violations, as previous Justices would reject claims of a constitutional right to religion-based discrimination.³⁰

She also states that the majority deemed the First Amendment as a shield that protects discriminatory conduct from anti-discrimination laws, a sentiment she calls “profoundly wrong.”³¹ Furthermore, she describes the Colorado law as a regulation of conduct, not speech, a crucial distinction as she argues that discriminatory actions never qualified as protected speech.³² This is because the First Amendment does not provide a right to engage in discriminatory conduct because its free speech protections are only extended to conduct with an expressive element.³³

Sotomayor argues that even if Smith’s conduct was deemed as speech, preventing “acts of invidious discrimination” is a compelling state interest, and therefore Colorado would pass strict scrutiny.³⁴ However, she also posits that given the lack of a speech element, Smith is making a free-speech claim to protect non-expressive conduct making this a question of rational basis review that Colorado easily passes.³⁵ Additionally, Sotomayor asserts that the Majority’s decision marks “a sad day in American constitutional law and in the lives of LGBT people.”³⁶ Sotomayor makes an emotional appeal regarding how such a ruling denies same-sex couples to be validated and included, further stigmatizing this demographic.³⁷

Her dissent follows a general theme that begs the question of how far the 303 Creative decision can be expanded and whether it will be used to overcome other anti-discrimination protections in favor of First Amendment claims.³⁸ She cautions that 303 Creative “cannot be understood outside of the context in which it arises” as it strays away from the key features of a supported First Amendment claim under the Constitution.³⁹ Sotomayor views the majority opinion as a setback for LGBT rights and that the Court failed to use this case as an avenue to reaffirm its “commitment to equality.”⁴⁰

C. How the Lower Courts Have Applied 303 Creative

The 303 Creative decision reaches beyond the Supreme Court. In Emilee Carpenter, LLC v. James, a wedding photographer refused to photograph same-sex couples, and the Second Circuit held that a photographer’s services are expressive given their artistic nature.⁴¹ In contrast, Scott v. Allen follows a process server who sought to criticize a police officer by publishing his personal information. The Tenth Circuit found that he had standing to challenge the law, explaining that courts must determine whether “Scott’s conduct is arguably proscribed and risks a credible threat of prosecution.”⁴² Together, these cases show instances of how lower courts have applied Gorsuch’s test.

III. Discussion

A. The Test Must Distinguish Conduct and Identity-Based Speech from Substantive Expression

The nature of the conduct must be included in the test. Traditional constitutional tests for regulating conduct rather than speech fall short when applied to commercial speech. Although Gorsuch provides a framework to address this shortfall, the test fits the facts of 303 Creative, but its application may differ in other cases. His test therefore needs an additional prong between the second and third prongs: whether a reasonable audience would view the speech as representative of the business owner or as a neutral part of the service being sold.

The new test should be: (1) whether the commercial speech is “pure speech”; (2) whether the speech involves the business owner’s speech; (3) whether a reasonable audience would deem the speech as representative of the business owner; and (4) whether the speech is being compelled by the government. Gorsuch falls short because of an overly broad test, and Sotomayor falls short by not creating a safeguard against limiting speech rights based solely on their discriminatory message. Adding this prong to the test covers a nuanced yet crucial part of determining when commercial services cross the line from conduct to protected speech.

B. 303 Creative Fails to Clearly Distinguish Protected Speech from Discriminatory Conduct

The issue of what can be considered as “compelled speech” in the commercial context is left ambiguous. Gorsuch’s three-part test falls within the usual frameworks for First Amendment cases.⁴³ However, 303 Creative fails to clearly distinguish commercial expression from commercial conduct that focuses solely on providing a service. The Court neglects to require lower courts to determine whether a reasonable audience would understand the expression as merely part of the service being provided or as conveying the business owner’s own views. This key analysis is necessary to draw the line between a website that only states a fact, such as the same-sex couple’s names, and a business being compelled to promote rhetoric such as a pro-LGBT message.

C. There Is a Need for a More Mechanical Test to Determine When Commercial Services Become Speech

The current three-part test is broad because the majority opinion fails to specify what makes a commercial service qualify as protected speech other than merely having a message incorporated into the service.⁴⁴ This broad test results in expansions of what constitutes expressive services and limits public accommodations laws.⁴⁵ Specifically, the second prong of the test only asks whether the speech involves the business owner’s speech.⁴⁶ However, the majority opinion fails to provide guidance on when the speech crosses the line from a basic service to being representative of the business owner’s beliefs. Emilee Carpenter, LLC v. James and Scott v. Allen are cases that illustrate the importance of defining pure conduct that is regulable by law and expressive conduct that cannot be compelled.⁴⁷ This vague area of the 303 Creative decision may allow for an expansion of its ruling to instances outside of the expressive services context such as a Texas judge arguing she has a right to not officiate for same-sex weddings.⁴⁸

The Court needs a “mechanical” test that provides a reliable framework without broadly protecting commercial speech or unduly restricting public accommodations laws.⁴⁹ Lower courts must be able to determine whether a business is objecting to the message or to the customer’s identity to distinguish protected expression from regulable conduct. Even in the context of 303 Creative, a website stating, “Mrs. and Mrs. Johnson” differs from one stating, “Being Gay Is Great!” because the former provides factual information about the couple, while the latter requires Smith to express a substantive message contrary to her beliefs.⁵⁰

Although the current framework should not be abandoned entirely because it has a strong foundation, lower courts need a narrower test to apply consistently and ensure that the ruling is not expanded to circumstances it was not intended to govern.⁵¹ Gorsuch was correct in upholding the core tenant that offensive speech does not receive less First Amendment protection than inoffensive speech because individuals cannot be punished for expressing a different opinion, including business owners. Also, despite the dissent’s valid concerns regarding LGBT rights, protecting those rights should not come at the expense of free speech, as courts should not erode one core liberty to protect another. However, Sotomayor was correct in highlighting the discriminatory repercussions of the majority opinion. Although the Constitution does not permit the government to punish one message more than another simply because of its viewpoint, the First Amendment does not automatically protect discriminatory conduct, especially in the context of commercial services.

IV. Conclusion

303 Creative is not a scary beast that will swallow LGBT rights whole, rather it is a vehicle for businesses to test the waters for how far the First Amendment will defend their exclusion of others. The current test remains overly broad, leaving lower courts struggling to distinguish expressive conduct from regulable conduct. Adding the proposed prong would narrow the test and better define where freedom of speech ends and discrimination begins.

Cover Photo by Walter Randlehoff on Unsplash

Author

Briana James

Briana James is a 2L student from Brooklyn, New York. She is a first-generation law student and a Double Bearcat. She completed her Bachelors degree in Political Science at the University of Cincinnati where she has worked in research and scholarly writing positions. In addition to Law Review, Briana is an Ohio Innocence Project Litigation Fellow, the Treasurer of the Black Law Student Association, and a Student Legal Education Committee (SLEC) Representative. In her free time, she enjoys gaming, reading, dancing, creative writing, traveling, and spontaneous hangouts with her loved ones. The practice areas that interest her are civil rights litigation, criminal law, administrative law, and appellate practice.

References

1
Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 292 (1964) (Goldberg, J., concurring). ↩︎
2
303 Creative LLC v. Elenis, 600 U.S. 570, 581-83 (2023); Dillon J. Richards, The Three Elements of 303 Creative and How They Limit the Decision’s Impact, 79 U. Miami L. Rev. 273, 275 (2024). ↩︎
3
Id. (This ruling has been viewed on one side as a “full-on attack on gay rights” and a judicial pass for businesses to discriminate in other contexts under the guise of First Amendment rights. Richards argues that this is an overstatement of the ruling, as 303 Creative is more of a case applied to specific facts rather than broad precedent.). ↩︎
4
303 Creative LLC v. Elenis, 600 U.S. 570, 602-03 (2023); Rena M Lindevaldsen, 303 Creative and the Question of Governmental Authority to Dictate Commercial Transactions, 18 Liberty U. L. Rev. 443, 445 (2024). ↩︎
5
303 Creative LLC v. Elenis, 600 U.S. 570, 603 (2023) (Gorsuch, J.). ↩︎
6
Id. ↩︎
7
See id. at 603-04 (Sotomayor, J., dissenting) (Justice Sotomayor describes this decision as granting a business that claims to be open to the public a constitutionally protected right to decline service to members of a protected class under a claim of free speech and citing the First Amendment.). ↩︎
8
Id. at 587-89 (Although Gorsuch states that he follows the Tenth Circuit’s reasoning on the precedent and what has been established, he differs on the overall outcome that was reached as Colorado’s stated interest of promoting inclusivity and not allowing businesses to discriminate was not compelling enough to override Smith’s First Amendment right to freedom of speech); see also id. at 625 (Sotomayor, J., dissenting) (Sotomayor questions the majority deeming Colorado’s state interest as not compelling enough to override Smith’s First Amendment claim and states that the law is not regulating Smith’s speech but rather acts as a form of prevention from unfettered discrimination and exclusion.). ↩︎
9
Id. at 603. ↩︎
10
Id. at 589; see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 574 (1995) (compelled speech is when a speaker is forced to accept and express a message that they disagree with.). ↩︎
11
Richards, supra note 2 at 295-97. ↩︎
12
Id. at 280. ↩︎
13
303 Creative LLC v. Elenis, 600 U.S. 570, 589 (2023). ↩︎
14
Id. at 589-90. ↩︎
15
Id. at 590; see also Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 571-72 (1995) (when the court applies strict scrutiny, the government must state a compelling government interest to justify a law’s infringement on a certain right, which, in this case, is the First Amendment. If the court finds the government’s asserted interest compelling, the court then determines whether the government’s means are narrowly tailored to achieve the compelling interest.); see also Boy Scouts of America v. Dale, 530 U.S. 640, 659 (2000) (explaining that despite New Jersey’s public accommodations law having many lawful applications, it was not a justifiable reason for severely intruding on the Boy Scouts’ freedom of expressive association, a sentiment which Gorsuch echoes in his opinion.). ↩︎
16
Id. at 587. ↩︎
17
Id. ↩︎
18
Id. at 588, 596. ↩︎
19
Id. at 592. ↩︎
20
Id.; see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 578 (1995); see also Boy Scouts of America v. Dale, 530 U.S. 640, 659 (2000). ↩︎
21
303 Creative, 600 U.S. at 593. ↩︎
22
Id. at 597. ↩︎
23
Id. ↩︎
24
Id. ↩︎
25
Id. ↩︎
26
Id. at 603. ↩︎
27
303 Creative LLC v. Elenis, 600 U.S. 570, 603 (2023). ↩︎
28
See generally id. at 604-07 (Sotomayor, J., dissenting); see also Roberts v. United States Jaycees, 468 U.S. 609, 624 (1984). ↩︎
29
303 Creative LLC v. Elenis, 600 U.S. 570, 613 (2023) (Sotomayor, J., dissenting). ↩︎
30
Id. at 604 (Sotomayor, J., dissenting). ↩︎
31
Id. ↩︎
32
Id. ↩︎
33
Id. ↩︎
34
Id. at 608 (Sotomayor, J., dissenting); see also Roberts, 468 U.S. at 628. ↩︎
35
303 Creative LLC v. Elenis, 600 U.S. 570, 608 (2023) (Sotomayor, J., dissenting); see also Roberts, 468 U.S., at 629. ↩︎
36
303 Creative, 600 U.S. at 636 (Sotomayor, J., dissenting). ↩︎
37
Id. at 637 (Sotomayor, J., dissenting). ↩︎
38
See generally 303 Creative LLC v. Elenis, 600 U.S. 570, 604-33 (2023) (Sotomayor, J., dissenting). ↩︎
39
Id. at 638 (Sotomayor, J., dissenting). ↩︎
40
Id. (Sotomayor, J., dissenting). ↩︎
41
Emilee Carpenter, LLC v. James, 107 F.4th 92, 97-106 (2nd Cir. 2024). ↩︎
42
Scott v. Allen, 153 F.4th 1088, 1091-97 (10th Cir. 2025). ↩︎
43
303 Creative LLC v. Elenis, 600 U.S. 570, 587-88 (2023). ↩︎
44
Id. ↩︎
45
Richards, supra note 2 at 315-16. ↩︎
46
303 Creative LLC v. Elenis, 600 U.S. 570, 581-83 (2023). ↩︎
47
Emilee Carpenter, LLC v. James, 107 F.4th 92, 97-106 (2nd Cir. 2024); Scott v. Allen, 153 F.4th 1088, 1091-97 (10th Cir. 2025). ↩︎
48
Richards, supra note 2 at 316; see also Hensley v. State Commission on Judicial Conduct, 692 S.W.3d 184 (Tex. 2024). ↩︎
49
Id. ↩︎
50
303 Creative LLC v. Elenis, 600 U.S. 570, 587-88 (2023). ↩︎
51
Id. at 633 (Sotomayor, J., dissenting). ↩︎