On August 22, 2022, Kaplan Hecker & Fink attorneys filed an amicus brief in the US Supreme Court on behalf of Public Accommodations Law Scholars in support of Respondents in 303 Creative v. Elenis (No. 21-476). Petitioner Lorie Smith, owner of web design company 303 Creative, sued the Colorado Division of Civil Rights, arguing that the Colorado Anti-Discrimination Act—to the extent it required her to serve same sex couples just as it serves the rest of the public—violated her First Amendment right of free speech.
Our brief explains that public accommodations laws, like the Colorado Anti-Discrimination Act, do not generally implicate the First Amendment because they regulate conduct—discrimination in the provision of goods and services—not speech. A public accommodations law may burden speech only in very narrow circumstances—namely, where regulated conduct is subjectively intended and objectively understood as conveying the business’s own message. The objective prong of this test requires a fact-intensive analysis that looks three factors: selectivity, commerce, and custom. That is, the test looks to whether a regulated party is highly selective, engages in standard commercial transactions, and engages in an endeavor that is customarily associated with expressing a message of its own. In this case, Petitioners Lorie Smith and 303 Creative are not selective—their web design portfolio shows that they create websites for a wide variety of clientele. Moreover, 303 Creative is engaged in typical business transactions, and in a business which is not customarily understood to convey the designer’s message. Because no reasonable third party would perceive the service of all customers pursuant to the equal access requirement under the Colorado Anti-Discrimination Act as conveying a message of Petitioners’ own, there is no First Amendment concern.
Our brief also highlights Colorado’s compelling interests in assuring full and equal access to the marketplace and protecting dignity in commercial transactions. Petitioners’ position was that these interests were not implicated here—either because 303 Creative will provide some web design services to gays and lesbians, or because gays and lesbians can seek web design services elsewhere in the market. But our brief explains that there is no legal or historical support for blessing partial access or for limiting the application of public accommodations laws to monopolies, a test that in any event would be extraordinarily confusing and unworkable.
Amici include Elizabeth Sepper, Professor of Law, The University of Texas at Austin School of Law; James Oleske, Professor of Law, Lewis & Clark Law School; and Joseph William Singer, Bussey Professor of Law, Harvard Law School.
The Kaplan Hecker team included partners Joshua Matz and Ray Tolentino; counsel Carmen Iguina González; and associates Nabihah Maqbool and Elizabeth Slater. This filing, which can be read in full here, reflects Kaplan Hecker’s continued commitment to working towards equity and justice.