By Paul Engel
July 14, 2023
- What does Colorado have against freedom of speech?
- First Jack Phillips of Masterpiece Cakeshop, now Lorie Smith of 303 Creative, LLC. Both have had cases against Colorado for violating their freedom of expression.
- Will the latest Supreme Court opinion finally teach Colorado a lesson?
Freedom of speech has been under attack in this country, and Colorado has been a big part of it. First, Jack Phillips of Masterpiece Cakeshop has spent ten years trying to defend his right to not be compelled to create custom cakes with messages which violate his beliefs. So when Lorie Smith wanted to expand her business into developing custom wedding websites, she was concerned that Colorado would do to her what it was doing to Jack Phillips. Her request for an injunction went all the way to the Supreme Court.
Freedom of speech includes the freedom not to be compelled to speak as well, but what happens when a person’s freedom of speech conflicts with a state’s law? In the case of 303 Creative LLC v. Elenis, the question was asked if the State of Colorado could dictate to Ms. Smith what type of message she had to communicate in her business.
Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.
303 Creative LLC v. Elenis
I don’t know how many times I’ve covered this, but then I doubt the justices on the Supreme Court read my articles. This cannot be a First Amendment case because Congress did not make this law.
Congress shall make no law … abridging the freedom of speech, or of the press;
U.S. Constitution, Amendment I
Since Congress did not make this law, it cannot be a violation of the First Amendment. So what this case truly is, is a violation of the Colorado Constitution:
No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty;
Colorado Constitution, Article II, Section 10
It’s also a violation of the Fourteenth Amendment of the Constitution of the United States.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Constitution, Amendment XIV
While the court opinion appears to focus on the First Amendment and freedom of speech, the real issue they were looking at was freedom of the press. Specifically, does the state have the power to compel others to publish content with which they disagree?
Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to “celebrate” and “conve[y]” the “details” of their “unique love story.” … The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be “original,” “customized,” and “tailored” creations. The websites will be “expressive in nature,” designed “to communicate a particular message.” Viewers will know, too, “that the websites are [Ms. Smith’s] original artwork,” for the name of the company she owns and operates by herself will be displayed on every one.
303 Creative LLC v. Elenis
Ms. Smith wants to create and publish webpages, without being compelled to use them to communicate a message she doesn’t agree with. Well, at least that was her plan.
While Ms. Smith has laid the groundwork for her new venture, she has yet to carry out her plans. She worries that, if she does so, Colorado will force her to express views with which she disagrees. Ms. Smith provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation. But she has never created expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism. Ms. Smith does not wish to do otherwise now, but she worries Colorado has different plans. Specifically, she worries that if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman. Ms. Smith acknowledges that her views about marriage may not be popular in all quarters. But, she asserts, the First Amendment’s Free Speech Clause protects her from being compelled to speak what she does not believe. The Constitution, she insists, protects her right to differ.
303 Creative LLC v. Elenis
I’m sure this language came from Ms. Smith’s attorney, because it uses the same phrases I’ve seen in other opinions used by lawyers. Since I’ve already explained why this case cannot be a First Amendment issue, let me explain why this is a free press case, not a free speech one.
Freedom of What?
Both the First Amendment of the United States Constitution and Article II, Section 10 of the Colorado Constitution protect both freedom of speech and press. Have you ever considered the difference between the two?
The faculty of uttering articulate sounds or words
Speech – Webster’s 1828 Dictionary
Ms. Smith isn’t planning to utter articulate sounds or words in her business, but publishing websites.
The art or business of printing and publishing.
Press – Webster’s 1828 Dictionary
While Ms. Smith, and for that matter the Supreme Court, see this as a First Amendment Freedom of Speech case, it’s really a Colorado Constitution Freedom of Press case and a Fourteenth Amendment privileges and immunities cases.
To clarify her rights, Ms. Smith filed a lawsuit in federal district court. In that suit, she sought an injunction to prevent the State from forcing her to create wedding websites celebrating marriages that defy her beliefs. To secure relief, Ms. Smith first had to establish her standing to sue. That required her to show “a credible threat” existed that Colorado would, in fact, seek to compel speech from her that she did not wish to produce.
303 Creative LLC v. Elenis
Ms. Smith, having seen what had happened to Jack Phillips, and probably others, initiates a preemptive strike, filing a lawsuit and seeking an injunction against the State of Colorado before they have a chance to infringe on her rights. However, since she has not been aggrieved yet, she doesn’t have an obvious standing for the courts. Generally, courts don’t appear to like preemptive law suits, deciding to wait until someone actually suffers some harm before accepting them. In order to show that she had standing, Ms. Smith had to show a credible threat that the State of Colorado would compel her to publish websites that she did not want to produce.
In her lawsuit, Ms. Smith alleged that, if she enters the wedding website business to celebrate marriages she does endorse, she faces a credible threat that Colorado will seek to use CADA [Colorado Anti-Discrimination Act] to compel her to create websites celebrating marriages she does not endorse. … As evidence, Ms. Smith pointed to Colorado’s record of past enforcement actions under CADA, including one that worked its way to this Court five years ago. See Masterpiece Cakeshop,
303 Creative LLC v. Elenis
Did Ms. Smith have a credible threat that Colorado would compel her to produce websites celebrating marriages she doe s not endorse? Absolutely. All the court had to do was look at a previous case it had dealt with, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n. In that case the court found that Colorado had violated the Free Exercise Clause, not so much because they compelled speech, but because the Colorado Civil Rights Commission was hostile to Jack Phillips beliefs.
That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n
Like all such cases, Ms. Smith’s case started in district court, where she lost. The case was appealed to the Tenth Circuit, which found that she did have standing, but was not entitled to the injunction she sought.
Turning to the merits, however, the Tenth Circuit held that Ms. Smith was not entitled to the injunction she sought. The court acknowledged that Ms. Smith’s planned wedding websites qualify as “pure speech” protected by the First Amendment. … As a result, the court reasoned, Colorado had to satisfy “strict scrutiny” before compelling speech from her that she did not wish to create. Id… Under that standard, the court continued, the State had to show both that forcing Ms. Smith to create speech would serve a compelling governmental interest and that no less restrictive alternative exists to secure that interest. … Ultimately, a divided panel concluded that the State had carried these burdens. As the majority saw it, Colorado has a compelling interest in ensuring “equal access to publicly available goods and services,” and no option short of coercing speech from Ms. Smith can satisfy that interest because she plans to offer “unique services” that are, “by definition, unavailable elsewhere.” …
303 Creative LLC v. Elenis
The Tenth Circuit acknowledged that Ms. Smith’s websites would be pure speech (press), so you would think that it would be protected. Unfortunately, under our current and irrational jurisprudence, we have this theory of “strict scrutiny”.
A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy. …
Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.
Strict Scrutiny – The Free Legal Dictionary
Under this interpretation of “judicial review”, a court can find an act to be unconstitutional, but allow it anyway because of a “compelling government interest”. The fact that this is a direct violation of both the Supremacy Clause and the justices’ oaths of office doesn’t seem to bother them one bit.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
As the supreme law of the land, once an act is found unconstitutional that should be the end of the debate. As has become quite common among today’s courts though, they’ve placed their preferences and options above their oaths to support the Constitution.
As these cases illustrate, the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply “misguided,” … and likely to cause “anguish” or “incalculable grief,” …. Equally, the First Amendment protects acts of expressive association. … Generally, too, the government may not compel a person to speak its own preferred messages. Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. … All that offends the First Amendment just the same.
303 Creative LLC v. Elenis
Your freedom to speak and publish is not subject to government regulation. Not only do the constitutions of the several states and the United States prohibit government from restraining your expression, no matter how misguided they may think it to be, they cannot compel or coerce you into expressing the message they would prefer. Suppressing, even eliminating a message they did not like, is exactly what the State of Colorado has done with the CADA.
As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to “forc[e her] to create custom websites” celebrating other marriages she does not. … Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.” … Indeed, the Tenth Circuit recognized that the coercive “[e]liminati[on]” of dissenting “ideas” about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith.
303 Creative LLC v. Elenis
Before we look at the majority opinion, let’s take a quick look at the dissent from justice Sotomayor, joined by justices Kagan and Jackson
Dissent
Five years ago, this Court recognized the “general rule” that religious and philosophical objections to gay marriage “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” … The Court also recognized the “serious stigma” that would result if “purveyors of goods and services who object to gay marriages for moral and religious reasons” were “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ”…
Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class. Specifically, the Court holds that the First Amendment exempts a website- design company from a state law that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public. The Court also holds that the company has a right to post a notice that says, “ ‘no [wedding websites] will be sold if they will be used for gay marriages.’ ”…
303 Creative LLC v. Elenis
Reading this opening to the dissent, I was reminded of a letter written by Dietrich Bonhoeffer that was quoted under the title Theory of Stupidity:
Against stupidity we are defenseless. Neither protests nor the use of force accomplish anything here; reasons fall on deaf ears; facts that contradict one’s prejudgment simply need not be believed —
Theory of Stupidity, Dietrich Bonhoeffer
A quick look at the facts stipulated by both Ms. Smith and the State of Colorado shows that at no time did Ms. Smith deny services to people based on their sexual preferences.
- To facilitate the district court’s resolution of the merits of her case, Ms. Smith and the State stipulated to a number of facts:
- Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “will gladly create custom graphics and websites” for clients of any sexual orientation.
- She will not produce content that “contradicts biblical truth” regardless of who orders it.
303 Creative LLC v. Elenis
Rather, she recognized it was illegal for the State of Colorado to coerce her to express a message with which she disagreed. It appears that, as Mr. Bonhoeffer noted, the dissenting justices “reasons fall on deaf ears; facts that contradict one’s prejudgment simply need not be believed”. It’s like getting directions to drive from Nashville to Boston, but starting in San Diego. With such a flawed starting point it’s no wonder these justices came to such a ridiculous, may I even say stupid, conclusion. While the language he used was quite different, it appears Justice Gorsuch was just as confused by the dissenting opinion:
It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws, … and the strides gay Americans have made towards securing equal justice under law, … And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?
When the dissent finally gets around to that question— more than halfway into its opinion—it reimagines the facts of this case from top to bottom. The dissent claims that Colorado wishes to regulate Ms. Smith’s “conduct,” not her speech. … Forget Colorado’s stipulation that Ms. Smith’s activities are “expressive,” … and the Tenth Circuit’s conclusion that the State seeks to compel “pure speech,” … The dissent chides us for deciding a pre-enforcement challenge. … But it ignores the Tenth Circuit’s finding that Ms. Smith faces a credible threat of sanctions unless she conforms her views to the State’s. … The dissent suggests (over and over again) that any burden on speech here is “incidental.” … All despite the Tenth Circuit’s finding that Colorado intends to force Ms. Smith to convey a message she does not believe with the “very purpose” of “[e]liminating . . . ideas” that differ from its own.
303 Creative LLC v. Elenis
Decision
Now let us look at the decision the rest of the justices came to.
If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in “remedial . . . training,” filing periodic compliance reports as officials deem necessary, and paying monetary fines. … Under our precedents, that “is enough,” more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.
303 Creative LLC v. Elenis
Sadly, but not unexpectedly, Justice Gorsuch places the opinions of the court above the supreme law of the land. Rather than recognizing that the State of Colorado had made a law abridging the rights and privileges of a citizen of their state and applying the protections of the law unequally, he points to the courts’ prior opinions, their precedent, to grant to Ms. Smith the justice she deserves. There is one portion of this opinion where Justice Gorsuch gives some recognition to the supremacy of the Constitution.
At the same time, this Court has also recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech. In Hurley, the Court commented favorably on Massachusetts’ public accommodations law, but made plain it could not be “applied to expressive activity” to compel speech.
303 Creative LLC v. Elenis
Although they got to their decision predictably, via a convoluted act of judicial gymnastics, the court did, in a 6-3 decision, come to what I believe is the correct conclusion.
In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” …“misguided, or even hurtful,” … But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is Reversed.
303 Creative LLC v. Elenis
Conclusion
While I disagree with how the court arrived at its opinion, my concerns are not with the conclusion, but the fact that the placing of precedent above the supreme law of the land could have just as easily led the court to another conclusion. If the Constitution does not mean exactly what it says, it can mean nothing at all. And that, ladies and gentlemen, should concern us all.
While there are still concerns, today is a day to celebrate an important victory for freedom of expressions, whether by speech or by press. I hope this case will also provide relief not only to Jack Phillips, but to Darnelle Stuzman and all of our fellow Americans struggling to exercise their rights without government censorship or compelled speech.
Three cheers for Lorie Smith. For her courage to stand up, for her willingness to see this case through, and for the beautiful websites she can now design without worrying that the State of Colorado will try to compel her to publish a message against her will.
© 2023 Paul Engel – All Rights Reserved
E-Mail Paul Engel: paul@constitutionstudy.com
by Lee Duigon
By: Devvy
By Frosty Wooldridge
dusk, people overflow sidewalks and sirens slash through the air 24/7. The evening news reports robberies, accidents, homicides and a plethora of calamities too numerous for human emotions to endure.
(Al Wilson and Frosty Wooldridge backpacking the Colorado Trail.)
By Lewis Brackett
By Reverend Glenn Adams
By Rob Pue
By Kat Stansell
By Karen Schoen
By Steven Yates
by Kathleen Marquardt
By: Amil Imani
By Coach Dave Daubenmire
True, you may travel far and you may travel deep. You may travel in both dimensions—your mind or your body. In any case, you sometimes find that you did not know what you were looking for in your quest. That is the true sack of gold that awaits you, the far-traveler.
(Notice the couple canoeing across Lake Tenaya in the High Sierra of Yosemite National Park.)
27,684 American troops, 300 aircraft; thousands of civilians were killed along with 23 of our own military. We the People paid to rebuild destroyed neighborhoods and train loads of money to the families of the dead. TRUTH: 
By Sidney Secular
By Bradlee Dean
By Kelleigh Nelson
By Dr. Marlene McMillan
I hope this column provides you with helpful information about banks like Old Glory and I say good for them! You don’t have to live in Oklahoma to have an account with them. If I owned a bank or was part of the board, I would do everything in my power to become state-chartered or chartered.
(Frosty Wooldridge, touring bike “Condor”, coast to coast across America.)
By Late Roy Masters
by Rolaant McKenzie
superhuman abilities, public sentiment began to turn against Mr. Incredible, Elastigirl, and other superheroes. In response to this, the United States government settled all legal claims and created the Superhero Relocation Program, which banned all “supers” from using their powers in public and forcing them into hiding with civilian identities and occupations.
By Pastor Roger Anghis
By Oregon State Senator, Dennis Linthicum
“GEOMAGNETIC STORM WATCH: Intermittent 
By Coach Dave Daubenmire
It is a decent bill, which restores parental rights to be able to knowledgeably participate in the content of their children’s education. Most Florida residents were glad to see it, and gave Tallahassee kudos for it. Disney and liberals denounced the bill strongly. Of course.
Whatever the final result of this litigation, it should never have happened, had Tallahassee been alert. The fact that the Governor v. the Mouse has made it onto the legal battlefield tells me that the Florida Legislature wasn’t paying attention they way they should. I believe that they had more pressing things to which to give their attention.
And the sky, well, those thunderheads lit up with the setting of the sun. Purple-pink dominated the heavens while we sat on our ‘boulder’ chairs watching the Natural World entertain us.
Sandi walked into the field. She gave a dozen poses from different stances. The picture I love best is the one she reclined in the flowers and stuck her feet up. She outstretched her arms as if accepting the beauty, joy, energy, spiritual blessings and warm of Mother Earth.
The latest Jim Caviezel movie, 
The reality is that Hollywood, mainstream media, CNN, Washington Post, Media Matters, Rolling Stone Magazine and every leftist outfit is attacking the true story of Tim Ballard’s heroics, saving the lives of sex-trafficked children as portrayed in Sound of Freedom. They’ve coordinated their reporting with the lies and nonsense of QAnon.
“One of the biggest misconceptions about human trafficking is that it always has to involve sex, and that is far from the truth. In fact, one of the major contributors to 
by Peter Falkenberg Brown
Leftist media outlets seem to have forgotten the adage, “Don’t shoot the messenger.” If children are being sex trafficked around the world, why wouldn’t every human who is not a sex trafficker oppose the practice? Perhaps because people in the mainstream media are consumers? Or “just following orders”? How about moral character? They might say that they don’t believe the problems are real, but that’s a foolish response. Published statistics say otherwise:
By Cliff Kincaid
(Frosty Wooldridge, coast to coast, entering New Mexico, The Land of Enchantment)
There is no proof that Muhammad was indeed chosen and commissioned by the author of the universe for this mission called Islam. So, Islam is a religion because it has a prophet? Why not Nazism? Oh, because Adolf Hitler did not claim so? What about Marx and, Engels, Mao? No, they did not claim to be emissaries of supernatural beings.
By Andrew Wallace
By Tom DeWeese
(Frosty Wooldridge standing among the giants of the Avenue of the Giants.)
By Paul Engel
(Sandi riding into the animal sanctuary “Friends Forever.”
(Friends Forever animal cremation cemetery, Kanab, Utah)
On May 20, 2022, Bill Maher, the host of “Real Time with Bill Maher” on HBO, spoke out very boldly against the LGBT community’s stance on children. He stated:
Worried by the Muslims’ trouble-making and killing sprees, civilized nations in Western Europe and Northern America are bending over backward to placate them to join the family of humanity by admitting hordes of immigrants and offering them all manners of hospitality and assistance. All these gestures remain in vain and to no avail. Many of the new arrivals, deeply infected by their Islamic indoctrination and ethos, find it impossible to assimilate in any host country. Instead, they strive to impose their defunct order, which is the cause of their own misery, backwardness, and inhumanity on the host nations.
You could say that the mountain passes that I climbed “etched” lots of memories into my thighs. Some call it “hard work” while I call it “hard play.” Many commented that it would be easier to ride on the flats of the Midwest. I responded that I would rather climb mountains to enjoy their rugged wildness.
By Andrew Wallace
by Attorney Rees Lloyd
(One of many waterfalls on the Road Going to the Sun, Glacier National Park, Montana)
In that slot, we pitched the tent. We pulled our gear and quickly dove into our bags. But not before a Guernsey cow came over to inspect us. We saw another 50 cows out in the field. Quickly, we heard all sorts of racket from cows milling about, bawling, peeing, farting and plopping.
One Health was introduced to the world in 2009 and housed in the National Center for Emerging & Zoonotic Infectious diseases at the Centers for Disease Control and Prevention. Their website says “One Health is an integrated, unifying approach that aims to sustainably balance and optimize the health of people, animals and ecosystems. It recognizes the health of humans, domestic and wild animals, plant, and the wider environment (including ecosystems) are closely linked and inter-dependent. The approach mobilizes multiple sectors, disciplines and communities of varying levels of society to work together to foster well-being and tackle threats to health and ecosystems, while addressing the collective need for clean water, energy and air, safe and nutritious food, taking action on clime changes and contributing to sustainable development.”[2]
Muslims in the West realize it is easier to change America through subversion (Stealth Jihad) rather than violent jihad.
Islamic subversion is not limited to liberal States. Texas, the most conservative state in the Union, is utterly undefended before Islamic subversion. I have witnessed politicians on both sides being either silent or openly appeasing Muslims for fear of being characterized as Islamophobes or racist. We, the people, elect our leaders, holding them accountable to be honorable. But they refuse to stand by their oath of office and defend the Constitution they swore on.
By Ms. Smallback
