Public accommodations laws have been enacted in about one half of the states in the United States. Such laws were intended to reach a common-sense goal. Namely, to treat everyone fairly, irrespective of their gender, race, ethnicity and in certain cases their publicly expressed sexual preferences. In 303 CREATIVE LLC ET AL. v. ELENIS ET AL., the Supreme Court decided last week that such laws, in certain circumstances, amounted to a government enforced limitation on a business owner’s free speech rights. Stated simply, the court decided that enforcing a non-binary customer’s free speech right resulted in the infringement of a business owner’s own free speech right.
What makes this particular case unique is that it was shaped, crafted, and supported solely for the purposes of promoting a tenant of the conservative political agenda. Namely, rolling back any rights or gains associated with LGBTQIA goals and the ability of government to support such progress. It was not an accident that this case involved a creative activity, namely, website design since creative activities are inherently “expressive” in nature which normally have significant free-speech content. The arguments of the plaintiff hit all the notes likely to resonate with a conservative or libertarian philosophy. Almost all expressive or creative activities implicate some free speech right and when paired with a desire to roll back the reach of government the plaintiff’s arguments dovetailed beautifully with the conservative majority of the current Supreme Court. Conservatives have long complained that public accommodations laws were another example of government overreach forcing business owners to recognize groups they may not support.
Public accommodation laws are founded on the principle that in exchange for a license to conduct business, a business owner must serve all reasonable customers. Such licenses typically arise when a business owner forms a corporation or a limited liability company and as a result, enjoy the benefits of limited personal liability and tax benefits associated with conducting business as a corporation or an LLC.
Here, the Supreme Court decided that the mere stated desire of the plaintiff design firm to openly restrict the provision of wedding website design services to only heterosexual couples was effectively a free speech right, a right that overrode Colorado’s legal obligation that all business owners must serve all customers. Because 303 Creative was a business whose work was “expressive” in nature, conservative activists used a free speech argument, a traditional liberal argument, into a short cut to the center of the conservative brain stem.
If this case had involved a tire repair shop or a walk-in health clinic the outcome would likely have been different. Stated another way, the Supreme Court enshrined a right to discriminate if a business owner’s discriminatory speech was “expressive” or could be defended as free speech if a law otherwise forced them to repeat or support a government message not endorsed by the business owner. What are the practical considerations of this event? What, if any, are the unforeseen consequences? How will creative professionals be affected by this decision? How should designers, artists and others who offer creative services conduct and manage a business in view of this change? In addition, does this event portend wholesale alterations to what comprises creativity in a public-facing business context?
Just as there are conservative and liberal pollsters and political consultants, it is well known that there are designers who prefer to work with customers whose beliefs align with their own. Any experienced business owner has learned how to artfully decline to work with someone who may not be a suitable fit with the cultural or political beliefs of the business owner. For creative professionals who believe in serving all customers, the court’s decision changes nothing. For those who place value of being able to filter the uncomfortable out of their professional activities, the decision is welcome. An unintended consequence is that the decision creates another wedge between Americans, providing another barrier between “us and the other.” While purportedly better defining the boundaries of free speech, the decision actually inserts more distance between citizens.
As a practical matter, the designer who wishes to expressly identify political or religious boundaries will probably be able to do so in a more express and explicit way, stating that we do not design for …….” A designer, design or advertising agency can now freely attract or repel customers with only a cursory nod to subtlety and taste if certain types of customers offend their beliefs. While there are still limits to denying services to members of a protected class, it’s a smaller group to worry about now. The Court’s decision may even mean that the growing use of AI tools in creative endeavors will not need to be adjusted to reduce bias or make messaging differences less subtle, creating positional boundaries between conservative and liberal more obvious. Arguably, one can now even program bias into the algorithms of choice under the banner of free speech.
A creative business concerned about what position statement they can or cannot make in view of this decision should understand that the Court’s decision has been interpreted as only applying to expressive or free speech that may be associated with religious or political beliefs. It is not a blanket permission to refuse services to persons of an otherwise protected class. This means that denying service to a customer solely because of their race, color, religion, sex, national origin, age, disability, and genetic information is still illegal provided the basis for denial of service is not based upon a first amendment right. The result of this decision is confusing and skirts common sense. The very purpose of public accommodation laws is to prevent discrimination. I have often said that designers are the creators of culture and the court’s action inserts a thinly veiled loophole into equal protection laws resulting in more division to society and in the ways creative services are offered, purchased, and enjoyed in America.
Photo by Oleg Laptev on Unsplash.