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Supreme Court of the United States

This Alarming 10th Circuit Decision Said That the Government Can Both Compel and Silence Speech

September 23, 2021

For more than a decade, Lorie Smith worked in the marketing and design industry. But she felt something was missing. Lorie wanted more freedom to use her talents to convey messages that she was passionate about. That’s why she founded and launched 303 Creative.

Lorie pours her heart, imagination, and talents into the websites and graphics she creates. She spends time with each of her clients—which include individuals, nonprofits, and small businesses—to get to know them and provide unique and custom website designs.

Inspired by her faith, Lorie desires to also create custom wedding websites celebrating marriage. But as she prepared to launch that new part of her business, Lorie learned about the Colorado Anti-Discrimination Act (CADA), a state law that would punish her if she created custom wedding websites only in accord with her religious beliefs. As a Christian, Lorie believes that marriage is a sacred union between one man and one woman. And while she will create websites for anyone, she can’t create all messages or use her design skills to express messages that violate her deeply held religious beliefs, no matter who requests them.

That’s why—with the help of ADF attorneys—Lorie decided to challenge the law in court before it was enforced against her.

This past July, the U.S. Court of Appeals for the 10th Circuit issued an unprecedented decision against her in 303 Creative v. Elenis , holding that Colorado can force Lorie to create custom wedding websites that violate her religious beliefs.

The 10th Circuit “ushers forth a brave new world”

The First Amendment is clear. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…”

Unfortunately, it appears that the 10th Circuit didn’t get the memo. The court ruled 2-1 that the state of Colorado can force Lorie to design and publish websites promoting messages that violate her religious beliefs.

But that’s not all.

CADA also prohibits Lorie from even explaining on her own company’s website what websites she can create consistent with her religious beliefs.

Think about what this means for a moment.

Both the state of Colorado and the 10th Circuit are saying that the government can compel both speech and silence. But as 10 th Circuit Chief Judge Timothy Tymkovich wrote in his dissent , “…the freedom to speak necessarily guarantees the right to remain silent. So the majority ushers forth a brave new world when it acknowledges that CADA compels both speech and silence—yet finds this intrusion constitutionally permissible.”

Judge Tymkovich continues, “This is, in a word, unprecedented….Taken to its logical end, the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace.’”

How many more creative professionals have to suffer?

The government should never force a web designer—or anyone—to create and promote messages with which they disagree. That’s what it means to have freedom of speech. And yet, Colorado cake artist Jack Phillips continues to be harassed, even after a victory at the U.S. Supreme Court. Washington floral artist Barronelle Stutzman could lose nearly everything she owns. And now Lorie is being told to speak messages she disagrees with and withhold sharing her views on her own business website.

This is blatantly unconstitutional.

That’s why ADF attorneys have appealed the 10th Circuit’s decision to the U.S. Supreme Court on Lorie’s behalf.

Artists don’t surrender their freedom of speech when they choose to make a living creating custom artwork. And in Lorie’s case, the First Amendment applies to pixels every bit as much as pen strokes. Internet companies, in particular, are regularly afforded the freedom to control the content of their website.

Lorie deserves that same freedom. Because free speech is for everyone—not just those who agree with the government.

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Alliance Defending Freedom

Alliance Defending Freedom

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