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‘Blow to Equal Treatment in the Public Market’

June 30, 2023

“It remains to be seen how far this radical new doctrine will reach,” said Prof. Tobias Wolff on the Supreme Court’s decision in 303 Creative.

In 303 Creative v. Elenis, the Supreme Court has ruled that “[t]he First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”

Tobias Barrington Wolff, Jefferson B. Fordham Professor of Law, wrote a widely praised amicus curiae brief in support of the State of Colorado in the case and has issued the following statement on the decision:

Tobias Wolff, Jefferson B. Fordham Professor of Law Tobias Wolff, Jefferson B. Fordham Professor of LawFor the first time today, the Supreme Court has held that the First Amendment authorizes a business operating in the public marketplace to violate anti-discrimination laws and tell unwanted customers “We don’t take your kind here.”

In 303 Creative v. Elenis, the Court took a set of precedents involving the right private speakers have to control their own messages and applied those precedents to businesses that sell goods and services in the commercial market for a fee. It remains to be seen how far this radical new doctrine will reach—what businesses produce goods and services that are “expressive enough” to take advantage of this holding, and how explicit a business will have to be in telling customers that they are paying for the privilege of promoting the business owner’s preferred messages.

But one thing is clear already: this decision deals a blow to equal treatment in the public market.

Wolff writes and teaches on the First Amendment with a particular focus on compelled speech doctrine. He was lead appellate counsel on behalf of the lesbian claimant in Elane Photography v. Willock, the New Mexico case involving a wedding photography company that refused to work with same-sex couples, which produced the first major appellate ruling on the First Amendment issues the Court would later take up in 303 Creative.

He has been a frequent commentator on the intersection of the First Amendment and anti-discrimination laws.

Read more of our esteemed faculty’s perspectives on today’s pressing legal issues.