303 Creative LLC v. Elenis (21-476)

argument 21-476

303 Creative LLC v. Elenis

Supreme Court of the United States 2h 21m 8 speakers 5 chapters transcribed 6 days ago official recording ↗

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What is the opening argument and background of the 303 Creative v. Elenis case?

John G. Roberts 0:00

We'll hear argument first this morning in case twenty one four hundred seventy six three oh three Creative LLC versus Elenus. Ms. Wagoner?

Allison K. Wagoner 0:14

Mr Chief Justice, and may it please the Court. Lori Smith blends art with technology to create custom messages using words and graphics. She serves all people deciding what to create based on the message, not who requests it. But Colorado declares her speech a public accommodation and insists that she create and speak messages that violate her conscience. This court rejects such government compelled speech. In Hurley, the Court considered a very similar issue, asking two questions is there speech and is the message affected? That test is easily met here. Colorado agrees Ms. Smith creates speech and the law undeniably affects her message. She is not asking this court to create new law, but to apply its precedent.

Allison K. Wagoner 1:02

Colorado first says this case is about a sale. It's not just about a sale. The state forces Ms. Smith to create speech, not simply sell it. Next, Colorado says it can compel speech on the same topic. But Ms. Smith believes opposite sex marriage honors scripture and same-sex marriage contradicts it. If the government can label this speech equivalent, it can do so for any speech, whether religious or political. Under Colorado's theory, jurisdictions could force a Democrat publicist to write a Republican's press release. Colorado's last resort is to argue that it can at least compel the same expression. But even the same expression can mean different things, like a black sculptor who carves a custom cross to celebrate a Catholic baptism but not an Aryan church rally.

Allison K. Wagoner 1:53

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 Smith Smith to create and speak messages on pain of investigation, fine and re education. I welcome this court's questions.

Clarence Thomas 2:11

Uh Counsel would you spend uh just a few minutes on whether or not this uh Uh your case is right.

Allison K. Wagoner 2:20

Sure. This Court has considered pre enforcement challenges before, and in those contexts it has looked at the facts. This is one of the strongest pre enforcement cases I think that this Court has considered, in that the parties have stipulated every message that Ms. Smith would create has a unique, customized message than that it celebrates a wedding and celebrates a marriage. It's also difficult to imagine a scenario where there is an more aggressive of enforcement history by Colorado. Ms. Smith's speech has been chilled for six years. She has been unable to speak in the marketplace. She's ready to do so today and she's ready to post her website statement today, which makes this case ripe.

Elena Kagan 3:01

Ms. Wagner, uh uh unless you're not through with that, sorry.

How does the Court apply the Hurley framework to determine if compelled speech is involved?

Elena Kagan 3:06

I'm through. Thank you. Uh can I give you a hypothetical? It's not really a hypothetical, because I happen to have two clerks in my chambers this year who are engaged. So in uh looking at this case and preparing this case, I looked at their websites. And uh so the hypothetical is about like I'm gonna call it the standard website. They both have their names on it, the date of the wedding, a picture of the couple. Then there are a bunch of places that you can click to. And one is um the schedule of events and the other is travel and hotel arrangements and another is favorite things to do in town while you're here, and another is registry. So that's what most websites look like, yeah? And they're not particularly ideological and they're not particularly religious, they're not particularly anything, all right?

Elena Kagan 3:58

And uh and then there's uh a tagline, just like the tagline in this case, about sort of who created the website or whose graphics and design and typefaces and so forth were used in the website. And so one of them says, I'm going to substitute a woman's name just to not advertise, but one of them says Made by love with Amber. Made with Love by Amber, right? It's actually bigger than the three oh three tagline. Um so I guess what I want to know is suppose Amber wakes up tomorrow morning and says, you know what, I don't want to do those websites anymore for same sex couples.