By: Nicole Curlee, Vol. 24 Staff Writer<\/p>\n\n\n\n
A Website Designer Walks into a Constitutional Crisis<\/strong><\/p>\n\n\n\n In June 2023, the Supreme Court handed down 303 Creative LLC v. Elenis<\/em><\/a>, ruling 6-3 that Colorado could not force a web designer to create a wedding website for a same-sex couple. Justice Gorsuch\u2019s majority framed the service as \u201cpure speech\u201d\u2013<\/a>original, customized expression that the First Amendment shields from compelled utterance.<\/p>\n\n\n\n The immediate holding is narrow. But the reasoning is not.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n What the Court Actually Said\u2013 and Didn\u2019t<\/strong><\/p>\n\n\n\n In the 303 Creative<\/em> opinion, Justice Gorsuch never defined \u201cpure speech.\u201d<\/a> He simply declared that Smith\u2019s custom websites \u2013 combining her words, graphics, and storytelling \u2013 qualified, and that settled the matter. When a public accommodations law and the Constitution collide, he wrote, there can be \u201cno question which must prevail.\u201d<\/a> That is a sweeping proposition.<\/p>\n\n\n\n The majority insisted it was not authorizing businesses to post \u201cNo Blacks Served\u201d signs. Yet, it offered no limiting principle for deciding which services cross into \u201cpure speech.\u201d Scholars<\/a> have argued the majority \u201clooked at the problem from the wrong end of the telescope[,]\u201d focusing on the expressive character of the business rather than on whether the government\u2019s interest targeted conduct or expression.<\/p>\n\n\n\n Justice Sotomayor\u2019s dissent<\/a> 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.<\/p>\n\n\n\n The Creep Beyond Creative Professionals<\/strong><\/p>\n\n\n\n The majority\u2019s language does not confine itself to graphic designers. Gorsuch warned against forcing \u201call manner of artists, speechwriters, and others whose services involve speech\u201d to express messages they oppose. A lawyer\u2019s brief involves speech, a financial advisor\u2019s retirement plan involves speech, even a doctor\u2019s treatment recommendation involves speech.<\/p>\n\n\n\n Professor Robert Post<\/a> flagged this danger directly, noting that the 303 Creative<\/em> framework could reach an advertising agency that refuses Black clients because its services are undeniably \u201cpure speech\u201d under Gorsuch\u2019s test.<\/p>\n\n\n\n This is not hypothetical. Since the decision, litigants have begun probing the boundaries.<\/a> The question is whether courts will hold the line,\u00a0or whether \u201cI produce expressive services\u201d becomes a universal solvent for professional regulation.<\/p>\n\n\n\n Three Regulatory Regimes at Risk<\/strong><\/p>\n\n\n\n Public accommodations laws<\/strong> face the most obvious threat. Any licensed professional who argues their service is \u201ccustomized\u201d and \u201cmessage-bearing\u201d can now claim a First Amendment exemption from equal-access requirements. Constitutional commentators<\/a> warn that this distorts the O\u2019Brien framework and opens the door to discrimination across dozens of service categories.<\/p>\n\n\n\n Mandatory disclosure regimes <\/strong>face a subtler but equally serious challenge. The Court has long permitted factual, non-controversial disclosures under the Zauderer standard<\/a>. But after NIFLA v. Becerra<\/a> (2018) rejected a \u201cprofessional speech\u201d carve-out for doctors, some advocates<\/a> argue that 303 Creative<\/em> further erodes the government\u2019s power to compel even routine disclosures. If a financial advisor\u2019s advice is \u201cpure speech,\u201d does requiring a fiduciary disclosure become unconstitutional compelled expression?<\/p>\n\n\n\n Licensing and anti-deception rules<\/strong> 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 \u201cpure speech,\u201d regulators face the argument that the compelled disclosure itself requires strict-scrutiny justification \u2013\u00a0a bar very few regulations survive.<\/p>\n\n\n\n The Missing Limiting Principle<\/strong><\/p>\n\n\n\n The majority\u2019s assurance that its ruling is narrow rings hollow without a workable test. 303 Creative<\/em><\/a> never clarified the scrutiny level it applied. The Court simply said the First Amendment would not \u201ctolerate\u201d<\/a> the compulsion, which reads more like a per se rule than a calibrated balancing.<\/p>\n\n\n\n Until the Court articulates a principled boundary between \u201cexpressive services\u201d and ordinary commerce, lower courts will struggle to resist expansive claims. The Yale Law Journal<\/a> has proposed legislative workarounds \u2013\u00a0like implied-warranty-of-nondiscrimination schemes \u2013\u00a0precisely because the judicial doctrine is so uncertain.<\/p>\n\n\n\n The Real Stakes<\/strong><\/p>\n\n\n\n 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<\/em> achieved the first. Its reasoning risks enabling the second.<\/p>\n\n\n\n The Court owes lower courts \u2013 and the country \u2013 a clearer answer to the question it avoided: when does a professional\u2019s output become \u201cpure speech\u201d 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.<\/p>\n","protected":false},"excerpt":{"rendered":" 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. 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