Supreme Court Hears Oral Arguments in 303 Creative v. Elenis

NRB | December 8, 2022 | Member News

WASHINGTON, D.C. –– The U.S. Supreme Court on Monday, December 5, heard oral arguments in 303 Creative LLC v. Aubrey Elenis, the free speech case concerning Lorie Smith, a Colorado website designer who filed a preemptive lawsuit challenging a Colorado public accommodation law that could require Smith to create custom wedding websites that violate her religious convictions—and prohibit her from publishing a statement on her website explaining her beliefs.

Live audio was made available to the public, and members of the public were also admitted to the Supreme Court to watch the proceedings.

Last year, NRB joined an amicus brief to the Supreme Court supporting the petition that 303 Creative be considered by the Court. In June, NRB, alongside a group of concerned organizations, multimedia professionals, and Christian communicators, filed a second amicus brief in support of the petitioner.

Smith has been represented by NRB member Alliance Defending Freedom (ADF). ADF CEO, president, and general counsel Kristen Waggoner delivered oral arguments, emphasizing that the underlying issue in Smith’s case is the compelled speech doctrine: government cannot compel speech against conviction.

Waggoner argued that “if the government may not force motorists to display a motto, school children to say a pledge, or parades to include banners, Colorado may not force Ms. Smith to create and speak messages on pain of investigation, fine, and reeducation.”

Photo: Kristen Waggoner Credit: Alliance Defending Freedom

“Cultural winds may shift, but the compelled speech doctrine should not,” added Waggoner in her rebuttal. “Compelled speech crushes the speaker’s conscience, and it is the tool of authoritarianism, which is why this Court has never allowed it.”

ADF held a rally in front of the Supreme Court in the hours before and during oral arguments. Supporters of Smith chanted “Create, don’t regulate” and “Free speech for all,” while counter-protesters blared siren noises and heckled rally attendees through well-worn megaphones.

Throughout the morning, a slate of speakers delivered remarks to the crowd, to those standing in line, and passers-by. Several lawmakers participated in the event, including Sen. James Lankford (R-Okla.) and Rep. Mike Johnson (R-La.).

Photo: Sen. Lankford

“Government can’t step in and say, ‘I require you to say something you don’t agree with.’ We have the right to speak and be silent,” said Lankford at the rally.

“We respect free speech. We don’t want to censor and silence opposing voices. We support vigorous debate. But we also understand it’s a very important American principle that we respect one another–-that we treat one another with dignity,” said Johnson.

Tony Perkins, president of NRB member Family Research Council (FRC), delivered remarks later that morning, saying, “We aren’t just here fighting for Christians; we are here at the Supreme Court, asking them to protect all people’s unique faith and all people’s ability to operate in the public sphere without being told how to speak. The First Amendment protects our most sacred and important liberties: the right to free speech and religious liberty.”

Jack Phillips, cake artist and owner of Masterpiece Cakeshop in Lakewood, Colorado, was in attendance and spoke at the rally about his case and Smith’s case, stating that it is the “government’s responsibility” to uphold First Amendment rights and that Smith’s case will “impact” every American. Phillips’ case, Scardina v. Masterpiece Cakeshop originated when Phillips denied a request to design a cake celebrating gender transition in 2017. An appeal was filed with the Colorado Court of Appeals.

Phillips’ attorney, ADF senior counsel, and state government relations national director Matt Sharp said that the implications of Smith’s case go far beyond a custom website or “belief about marriage.”

“If Colorado wins, it will establish a chilling precedent that reverberates across the country,” said Sharp. “If the state can dictate what Lorie can and cannot say and how she uses her artistic talents, what speech can the state demand you and I? And that’s why a win for Lorie is a win for all of us.”

The Supreme Court is expected to rule in 303 Creative by the end of its term in mid-2023.

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