303 Creative Ruling Sets and Reaffirms Key Precedents for Online Service Providers

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP

The Supreme Court's landmark decision in 303 Creative v. Elenis, No. 21-0576 (U.S. June 30, 2023) held that Colorado cannot force a website designer to create an expressive message antithetical to her beliefs. In so ruling, the Court cited and applied First Amendment precedents critical to intermediaries like online services that publish others' speech. The decision underscores these platforms' unqualified First Amendment rights to select, edit, remove, and/or block the content they publish, and bolsters online services' positions in future cases involving other regulations and related private claims.

Case Background

303 Creative arrived at the Court in an unusual posture. Plaintiff Lorie Smith, a website designer, hoped to expand her graphic-design business to include custom wedding-website services. Because of her claimed moral opposition to same-sex marriage, Smith wanted to design custom wedding websites for heterosexual couples only—and wanted to advertise that—but was purportedly worried Colorado's Anti-Discrimination Act would compel her to create a custom wedding website for a same-sex couple. "To clarify her rights," Smith brought a pre-enforcement challenge. Slip Op. at 2.

Absent concrete facts related to any particular controversy, the parties stipulated to several facts to structure the litigation. The parties stipulated that Smith's graphic and website design services were expressive; that Smith's belief that marriage is a union between one man and one woman was sincere; and that Smith would not create content contradicting this view. See Slip Op. at 4-5. The stipulations would prove critical, as the Court's opinion references them no fewer than 15 times.

The district court denied Smith's attempt to obtain a pre-enforcement injunction, 405 F. Supp. 3d 907, 912 (D. Colo. 2019), and a divided panel for the U.S. Court of Appeals for the Tenth Circuit affirmed. 6 F.4th 1160, 1168 (10th Cir. 2021). Although the panel majority held creating custom wedding websites was "pure speech" whose regulation triggered strict scrutiny, id. at 1176 (citing Kaplan v. California, 413 U.S. 115, 119-20 (1973) and providing examples of pure speech), it found that ensuring "equal access to publicly available goods and services" was a compelling state interest, and that public accommodation law was the least restrictive alternative to achieve that interest. Id. at 1178. Chief Judge Tymkovich dissented, stating that "ensuring access to a particular person's unique, artistic product . . . is not a compelling state interest." Id. at 1203. He analogized the facts of this case to a Muslim film director being compelled to make a movie with a Zionist message. Id. at 1999.

Key Holdings for Online Services 

With Justice Gorsuch writing for a 6-3 majority that included Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett, the Court reversed. Based on the stipulated facts, the Court held that the creation of customized wedding websites constituted Smith and her company's "pure speech" for purposes of the First Amendment. It then found that since Smith was willing to serve all potential customers provided she did not have to create customized designs that conflicted with her personal beliefs, requiring Smith to create such websites would compel speech in violation of the First Amendment.

Four aspects of the Court's opinion stand out for their application to online services more broadly.

Protections for the Internet Speech. The Supreme Court affirmed the rule, first announced in Reno v. ACLU, 521 U.S. 844 (1997), that the First Amendment applies without qualification to speech communicated through the internet. See Slip Op. at 9-10 (citing Reno to hold that speech is "no less protected" when it is "conveyed over the Internet" as opposed to "using pen and paper"). Reno's holding was significant because it rejected contentions that the internet's technical characteristics warranted more extensive regulation—and diminished First Amendment protection—more akin to cable networks or broadcast TV and radio than print media like books or newspapers. Contemporary critics have urged courts to revisit this portion of Reno, but the Court's citation and application of Reno in 303 Creative suggests the Court will not soon reverse this rule.

Protections for Editing Content Provided by Others. The Court affirmed the principle that the First Amendment protects intermediaries who provide a platform for and edit others' speech. See Slip Op. at 10. Specifically, the decision recognized that acting "to vet" third-party speech—including to determine if one "is willing" to publish it—is itself speech the First Amendment protects. Id. The Court relied on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 569 (1995), a case involving a parade organizer's right to exclude expression inconsistent with its message. Quoting that decision to reject the contention that Smith could not claim protection for arranging a customer's expressive elements, the Court affirmed the exercise of discretion to "combin[e] multifarious voices" is entitled to "constitutional protection." The opinion suggests the Court has little appetite for arguments that "editorial discretion"—such as the discretion applied to moderate user-generated content—is not protected by the First Amendment. Cf. NetChoice LLC v. Paxton, 49 F.4th 439, 463-64 (5th Cir. 2022) (suggesting it is not).

High Standard for Compelled Speech Regulations. In affirming that the First Amendment protects private entities from expressing messages the government compels them to publish, the Court eschewed traditional strict scrutiny analysis. Unlike the Tenth Circuit's decision that assessed whether Colorado's public accommodation law was the least restrictive means to advance a compelling state interest, Justice Gorsuch's opinion simply concluded that the Colorado law compelled speech, and held that violated the First Amendment as-applied to the facts stipulated, seemingly per se. See Slip Op. at 25-26. The approach echoes Justice Kennedy's concurrence in Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Board, 502 U.S. 105 (1991), where he wrote that "[b]orrowing the compelling interest and narrow tailoring analysis" from the equal protection context "is ill advised" in First Amendment cases since "the test might be read as concession that States may censor speech whenever they believe there is a compelling justification for doing so." Id. at 124. Justice Kennedy preferred a bright-line rule that "raw censorship based on content"—which includes laws that compel and thus "alter" speech, see Riley v. Nat'l Fed. of Blind, 487 U.S. 781, 795 (1988)—"[is] forbidden by the text of the First Amendment." 502 U.S. at 129 (Kennedy, J., concurring).

Limited Definition of Commercial Speech. The Supreme Court also refused to dilute the First Amendment's protections by taking an expansive view of commercial speech to reach any expression "created with an expectation of compensation." Slip Op. at 16-17. Affirming the rule that "economic motivation" is "insufficient by itself" to transform expression "into commercial speech," Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66, 67 (1983), the Court instead stressed that Smith's profit motivation—shared as much by "a speechwriter" as "a visual artist who accepts commissions"—does not "make[] a difference." Slip Op. at 16. The ruling underscores that the selection and compilation of speech published through online platforms implicates the First Amendment's full protections.

What's Next 

303 Creative makes it difficult to envision the Supreme Court upholding either of the Texas or Florida "must carry" laws challenged in NetChoice LLC v. Paxton, 49 F.4th 439 (5th Cir. 2022) or NetChoice LLC v. Attorney General, 34 F.4th 1196 (11th Cir. 2022), in which petitions for certiorari are pending. The laws in those cases nakedly compel online platforms to publish, and not edit, block, or remove, users' political speech even when the speech conflicts with the platforms' editorial values. The 303 Creative decision suggests those laws directly regulate online services' speech protected without qualification by the First Amendment, and does so in a manner that may be invalid per se. The decision also bolsters online services' First Amendment defenses in cases where private plaintiffs challenge the platforms' rights to block or remove user content or accounts.

Though it is certainly possible that some of the six justices voting in the majority might shade the issues differently if the party claiming the First Amendment's protection were an online service instead of an individual small-business owner claiming sincerely held moral convictions, the logic of the 303 Creative decision—all else being equal—bodes well for future of the First Amendment protections online.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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