Judges Say Web Design Is 'Pure Speech' and That the State Can Compel It Anyway

Stephanie Slade | 7.27.2021 4:49 PM

The great Masterpiece Cakeshop debates of 2015–2018 could sometimes sound like the refrain from "Anything You Can Do (I Can Do Better)," with people on the baker's side insisting that creating and decorating a custom wedding cake is an expressive activity and thus protected conduct under the First Amendment, and people on the complainants' side insisting it's mere commercial activity and so proprietors cannot pick and choose which jobs to accept based on their moral convictions ("yes it is," "no it's not," "yes it is," "no it's not"). But yesterday, in a similar case, the U.S. Court of Appeals for the 10th Circuit chucked that criterion out the window and decreed that speech itself can be compelled by the state in the name of preventing discrimination against gays and lesbians.

In 303 Creative LLC v. Elenis , a divided three-judge panel found that designing a custom wedding website is "pure speech." Under Colorado's anti-discrimination law, the court noted, "Appellants are forced to create websites—and thus, speech—that they would otherwise refuse." This would seem to point to a win for the web designers who do not wish to use their creative skills to "celebrate and promote the couple's wedding and unique love story." But according to Judge Mary Beck Briscoe and Judge Michael Murphy, that fact is less important than the "compelling interest" the state of Colorado has in "protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace." 

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