The Diversity, Equity, and Community Office and the Program in Law and Government co-sponsored a panel discussion, “On the 303 Creative,” featuring constitutional law scholars James F. Blumstein and Jessica Clarke and First Amendment expert Jennifer Safstrom at Vanderbilt Law School on Nov. 10.
Blumstein is Vanderbilt’s University Distinguished Professor of Constitutional Law and Health Law & Policy. Clarke, who taught at Vanderbilt Law from 2018 to 2023, is a Professor of Law at the University of Southern California Gould School of Law and focuses on antidiscrimination law. Safstrom directs Vanderbilt’s Stanton Foundation First Amendment Clinic.
303 Creative was a case brought by Lorie Smith, who wanted to expand her Littleton, Colorado-based graphic design business to include wedding websites. Smith wanted to post a message on her own website indicating that, due to her deeply held religious beliefs, she would only provide this service to heterosexual couples. However, Colorado’s public accommodations law bars businesses that are open to the public from discriminating against LGBTQ+ people, among others, and from announcing their intent to do so.
Smith brought suit in federal court, arguing that Colorado’s law violated her First Amendment right to freedom of speech. She lost in the lower courts and appealed to the Supreme Court, which ruled in her favor in June 2023.
Here are key takeaways from the discussion:
- 303 Creative illuminates a tension between free speech rights, freedom of religion, and the rights of individuals not to be discriminated against for reasons of race, gender, sexual orientation, and religion that the Supreme Court’s decision in this case did not resolve.
- Scholars disagree about whether this case establishes a clear line between the right to free speech and the right of individuals not to be discriminated against. Blumstein argued that First Amendment protections are retained even in the context of nondiscrimination law if the speech at issue is “expressive,” nothing that the Court’s decision was based on a finding that a law requiring Smith to create a website for a gay couple would constitute forced “expressive” speech. “The government cannot compel you to speak,” Blumstein said. “In this case, the Court draws a line between expressive and inexpressive activity. This case was constructed to apply to expressive activities.”
- The case raises concerns about access to services and individual dignity. Blumstein argues that if services are readily available elsewhere, that is sufficient to allow businesses to assert their rights of freedom of expression and freedom of religion.
- Questions about Lorie Smith’s standing and some facts of the case continue to concern some legal scholars. “This case was a particularly bad vehicle for making such a decision,” Safstrom said. “No one was representing a litigant on the other side.” Clarke pointed out that “Colorado made a number of concessions on the facts in this case.” Her major question: “Why are they [the Supreme Court] granting cert?”
The discussion was moderated by Assistant Dean for Diversity, Equity, and Community Yesha Yadav.
