Supreme Court holds First Amendment protects expressive speech even in commercial setting, despite anti-discrimination statutory provisions

In 303 Creative, LLC v. Elenis, the Supreme Court held that the First Amendment protects expressive speech even in commercial setting, despite anti-discrimination statutory provisions. The highly controversial decision came in a party-line split decision and is sure to draw more litigation and eventual review by a future Supreme Court. Even the majority opinion noted its ruling fell in line with such previous decisions as one that protected Nazi speech and another that protected protests at soldiers’ funerals. The majority failed to provide any explanation or boundaries that future courts can use to identify protected “expressive speech,” holding there was no need to do so because, in this case, it contended, that the State of Colorado had stipulated the speech in this case — hypothetical speech since the case was filed by the speaker’s company prior to being asked to engage in any particular kind of speech — qualified as “expressive speech.”

Future courts will have to grapple not only with the soundness of the majority’s decision but its reach in cases where the parties have not entered into stipulations as far-reaching as the State of Colorado had here. For example, as the majority noted, the stipulations here included the following:

45. Through 303 Creative, Ms. Smith offers a variety of creative services to the public, including graphic design, and website design, and in concert with those design services, social media management and consultation services, marketing advice, branding strategy, training regarding website management, and innovative approaches for achieving client goals.
46. All of Plaintiffs’ graphic designs are expressive in nature, as they contain images, words, symbols, and other modes of expression that Plaintiffs use to communicate a particular message.
47. All of Plaintiffs’ website designs are expressive in nature, as they contain images, words, symbols, and other modes of expression that Plaintiffs use to communicate a particular message.

It is unlikely future litigants will be willing to enter into such stipulations in contended cases. As the dissent noted, the case also raised an issue of ripeness, which the majority held was resolved by the parties’ far-reaching stipulations, but absent such stipulations in future cases, ripeness may will be a significant challenge for would-be speakers’ rights proponents.