The First Amendment guarantees all Americans the freedom to choose what to say and what not to say. But in recent years, state and local governments have threatened this freedom by misapplying public-accommodation laws to target constitutionally protected speech.
But in 303 Creative v. Elenis, a 2023 decision, the U.S. Supreme Court reaffirmed the bedrock First Amendment principle that the government cannot compel someone to express a message they don’t believe. In that case, Alliance Defending Freedom represented Lorie Smith, a graphic artist and website designer, and her design studio to ensure her freedom to create custom web designs consistent with her beliefs about marriage.
Before the Supreme Court’s ruling, ADF had filed lawsuits all over the country defending the rights of artists to express only messages consistent with their beliefs. One of those artists is Emilee Carpenter, a photographer and blogger from New York.
In Emilee’s case, New York state and county officials are misusing public-accommodation laws to compel Emilee to create photographs and write blog posts celebrating a view of marriage that contradict her beliefs. They say if she doesn’t create those photographs and blogs, she is violating the state’s laws.
But New York is wrong. The First Amendment ensures that Emilee can decline to express messages that contradict her beliefs, and the Supreme Court’s ruling in 303 Creative reaffirmed this right. The truth is that Emilee considers the what and not the who when she creates photographs. She happily serves everyone; she simply cannot promote every message.
Who is Emilee Carpenter?
Emilee Carpenter is a Christian artist who tells stories through her photographs and blogs. She began her journey as a photographer in high school, and she first started working professionally in 2012.
After a brief stint in the corporate world, Emilee founded her own photography studio, Emilee Carpenter Photography, to pursue her creative passions and to celebrate messages consistent with her beliefs. One of those core beliefs is that marriage is the union of one man and one woman. And while Emilee happily serves everyone, she cannot create photographs celebrating a view of marriage that contradicts this belief, no matter who asks.
But Emilee read news reports about other photographers and business owners in New York and elsewhere who were being sued and threatened with severe penalties for declining to celebrate or participate in same-sex weddings. She then learned about New York’s laws and realized they threaten her ability to operate her business according to her faith.
To protect her freedom to promote views about marriage consistent with her faith, Emilee filed a pre-enforcement challenge to New York’s laws in April 2021.
New York’s public-accommodation laws force Emilee to promote views of marriage that violate her religious beliefs. These statutes offer Emilee an impossible choice: violate her beliefs, violate the law, or shut down her studio.
New York says Emilee violates its laws if she continues to photograph only weddings consistent with her beliefs about marriage or publicizes those beliefs. And the penalties are staggering. Under the laws, Emilee could be forced to pay limitless damages and $100,000 fines. She also risks jailtime and having her business license revoked.
This compulsion violates the First Amendment, which protects Emilee’s freedom to choose the messages she celebrates through her photography and blogs.
A federal district court dismissed Emilee’s case in December 2021. The court assumed Emilee served everyone, that Emilee’s photographs are speech, and that New York’s laws compelled Emilee to promote a view of marriage that violated her beliefs. Even so, the court held that New York could compel Emilee’s speech. That ruling violates the First Amendment.
So ADF attorneys appealed to the U.S. Court of Appeals for the 2nd Circuit in January 2022. In June 2023, the Supreme Court issued its ruling in 303 Creative, and ADF attorneys asked the circuit court to apply the principles from that landmark decision to Emilee’s case.
Thankfully, in July 2024, the 2nd Circuit ruled in Emilee’s favor, saying that her case could proceed at the lower court.
What’s at stake?
The First Amendment guarantees to all Americans—including artists—the freedom to choose which messages to express. If the government can compel Emilee to convey a view of marriage that cuts against her beliefs, it can compel the speech of others.
A victory for Emilee wouldn’t be just a win for her. The same protections that ensure she can promote messages consistent with her beliefs ensure that a lesbian photographer can decline to express messages criticizing same-sex marriage, or that a Democratic print shop owner can decline to design posters for Republican politicians.
A win for Emilee is a win for everybody. No one should be forced to say something they don’t believe. Every American should be free to express their ideas—even if the government disagrees with them.
Emilee Carpenter Photography v. James
- April 2021: ADF attorneys filed a lawsuit on behalf of Emilee Carpenter and her photography studio challenging New York’s laws that forced her to photograph and blog about same-sex weddings because she does so for weddings between one man and one woman.
- December 2021: A federal district court dismissed Emilee’s case.
- January 2022: ADF attorneys appealed the decision to the U.S. Court of Appeals for the 2nd Circuit.
- September 2022: ADF attorneys delivered oral argument at the 2nd Circuit and explained that the federal district court’s decision should be reversed.
- July 2023: Following the Supreme Court’s ruling in 303 Creative, ADF attorneys asked the 2nd Circuit to affirm Emilee’s right to free speech.
- July 2024: The 2nd Circuit ruled that Emilee’s case may proceed and that a lower court should evaluate whether to issue an injunction to prevent New York from forcing her to create messages inconsistent with her faith.
