First Amendment and Anti-Discrimination

LGBTQ Pride

In 303 Creative LLC v. Elenis, the Supreme Court is tasked with deciding whether applying the Colorado Anti-Discrimination Act (CADA), a public-accommodation law, to an artist to speak or stay silent violate the Free Speech Clause of the First Amendment.

Tobias Barrington Wolff, Jefferson B. Fordham Professor of Law and Deputy Dean for Equity & Inclusion at the University of Pennsylvania Carey Law School, filed a widely praised amicus curiae brief in support of the State of Colorado in which he argued:

Tobias Barrington Wolff, Jefferson B. Fordham Professor of LawThe Speech Clause of the First Amendment has never been a license for businesses to discriminate in the commercial marketplace. To the contrary, an unbroken line of cases has rejected all such attempts. When a business sells goods and services in the market, it is not a street corner speaker engaging in a personal act of expression. Customers do not pay for the privilege of promoting a commercial vendor’s own message. Customers pay for goods and services chosen by them and tailored to their needs. Selling goods and services in the marketplace is commercial conduct that the State may regulate, and anti-discrimination statutes like the Colorado Anti-Discrimination Act (CADA) do not provoke any First Amendment scrutiny in that setting.

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.

Wolff 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.