By: Nicole Curlee, Vol. 24 Staff Writer

A Website Designer Walks into a Constitutional Crisis

In June 2023, the Supreme Court handed down 303 Creative LLC v. Elenis, ruling 6-3 that Colorado could not force a web designer to create a wedding website for a same-sex couple. Justice Gorsuch’s majority framed the service as “pure speech”–original, customized expression that the First Amendment shields from compelled utterance.

The immediate holding is narrow. But the reasoning is not.

By elevating personalized professional services into a new constitutional category, the Court quietly handed a powerful argument to anyone who wants to reframe ordinary professional regulation as compelled speech. That risk deserves far more attention than it has received.

What the Court Actually Said– and Didn’t

In the 303 Creative opinion, Justice Gorsuch never defined “pure speech.” He simply declared that Smith’s custom websites – combining her words, graphics, and storytelling – qualified, and that settled the matter. When a public accommodations law and the Constitution collide, he wrote, there can be “no question which must prevail.” That is a sweeping proposition.

The majority insisted it was not authorizing businesses to post “No Blacks Served” signs. Yet, it offered no limiting principle for deciding which services cross into “pure speech.” Scholars have argued the majority “looked at the problem from the wrong end of the telescope[,]” focusing on the expressive character of the business rather than on whether the government’s interest targeted conduct or expression.

Justice Sotomayor’s dissent captured the stakes bluntly. For the first time, the Court granted a business open to the public a constitutional right to refuse service to a protected class.

The Creep Beyond Creative Professionals

The majority’s language does not confine itself to graphic designers. Gorsuch warned against forcing “all manner of artists, speechwriters, and others whose services involve speech” to express messages they oppose. A lawyer’s brief involves speech, a financial advisor’s retirement plan involves speech, even a doctor’s treatment recommendation involves speech.

Professor Robert Post flagged this danger directly, noting that the 303 Creative framework could reach an advertising agency that refuses Black clients because its services are undeniably “pure speech” under Gorsuch’s test.

This is not hypothetical. Since the decision, litigants have begun probing the boundaries. The question is whether courts will hold the line, or whether “I produce expressive services” becomes a universal solvent for professional regulation.

Three Regulatory Regimes at Risk

Public accommodations laws face the most obvious threat. Any licensed professional who argues their service is “customized” and “message-bearing” can now claim a First Amendment exemption from equal-access requirements. Constitutional commentators warn that this distorts the O’Brien framework and opens the door to discrimination across dozens of service categories.

Mandatory disclosure regimes face a subtler but equally serious challenge. The Court has long permitted factual, non-controversial disclosures under the Zauderer standard. But after NIFLA v. Becerra (2018) rejected a “professional speech” carve-out for doctors, some advocates argue that 303 Creative further erodes the government’s power to compel even routine disclosures. If a financial advisor’s advice is “pure speech,” does requiring a fiduciary disclosure become unconstitutional compelled expression?

Licensing and anti-deception rules could follow. Bar regulations require attorneys to disclose conflicts of interest and medical boards require informed-consent notices. If the services underlying those disclosures are now constitutional “pure speech,” regulators face the argument that the compelled disclosure itself requires strict-scrutiny justification – a bar very few regulations survive.

The Missing Limiting Principle

The majority’s assurance that its ruling is narrow rings hollow without a workable test. 303 Creative never clarified the scrutiny level it applied. The Court simply said the First Amendment would not “tolerate” the compulsion, which reads more like a per se rule than a calibrated balancing.

Until the Court articulates a principled boundary between “expressive services” and ordinary commerce, lower courts will struggle to resist expansive claims. The Yale Law Journal has proposed legislative workarounds – like implied-warranty-of-nondiscrimination schemes – precisely because the judicial doctrine is so uncertain.

The Real Stakes

The compelled speech doctrine exists for good reason. Forcing citizens to mouth government approved messages is dangerous. But protecting a web designer from a Colorado antidiscrimination law and dismantling the regulatory infrastructure for professional services are not the same project. 303 Creative achieved the first. Its reasoning risks enabling the second.

The Court owes lower courts – and the country – a clearer answer to the question it avoided: when does a professional’s output become “pure speech” that immunizes the entire service from neutral, generally applicable regulation? Without that answer, every regulated professional is one clever brief away from a constitutional exemption.