Mitigating Discrimination by Businesses: Adopting a "Substantial Amount of Expression" Test in the Wake of the Court's 303 Creative Decision

Authors

Caleb KundeFollow

Abstract

The Supreme Court’s recent decision in 303 Creative LLC v. Elenis[1] balanced Colorado’s anti-discrimination public accommodations law and its burden on a website designer’s right to be free from compelled speech.[2] Choosing to hold for the website designer, the Court decided that Ms. Smith was free to refuse her wedding website service to same-sex couples.[3] Put another way, the Court’s decision granted businesses that are open to the public a license to discriminate through the Free Speech Clause. Not only is this the first time that a business’s First Amendment rights overrode a public accommodations law’s compelling interest in preventing discrimination, but to qualify for this license to discriminate, a business only has to engage in “pure speech[.]”[4] A plain reading of the opinion could lead to discrimination against members of the public by a wide array of “creative professionals,”[5] including traditional examples, such as artists and writers, and even extending to other professions, such as lawyers and healthcare professionals.

The Court’s holding creates a license to discriminate that threatens to revive discriminatory practices not seen since before the Civil Rights Act of 1964. Therefore, to mitigate the effects of the 303 Creative opinion, the lower courts should interpret the opinion narrowly and adopt a “substantial amount of expression” test to determine if the business claiming this Free Speech Clause license to discriminate is actually engaged in pure speech. A test such as this will involve evaluating the nature of the goods or services to determine if they are sufficiently expressive to garner First Amendment protection and trump the government’s compelling interest behind a public accommodations law. This test draws upon scholarship on the concept of proportionality in constitutional claims, which places some of the burden associated with strict scrutiny on the claimant. Thus, the test will serve to confine the limits of the holding to bona fide claims by businesses actually engaged in expressive activities.

First Page

321

Last Page

352

Date Created

4-30-2025

Publisher

St. Mary's University School of Law

Editor

Cameron Crivellari

Recommended Citation

Caleb Kunde, Mitigating Discrimination by Businesses: Adopting a "Substantial Amount of Expression" Test in the Wake of the Court's 303 Creative Decision, 56 St. Mary's L.J. 321 (2025).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol56/iss2/3

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