The U.S. Supreme Court’s refusal to consider governmental interests could lead to a sweeping rollback of regulations.
In 303 Creative LLC v. Elenis, the U.S. Supreme Court held that Colorado’s antidiscrimination law violated the First Amendment rights of a website designer who refused to create same-sex wedding websites. Some scholars worried that this decision from 2023 would open the door for litigants to “mutilate antidiscrimination laws of all kinds.”
As it turns out, 303 Creative unleashed a series of lawsuits that reaches far beyond antidiscrimination laws, threatening to “mutilate” regulations across a range of policy domains.
Litigants have invoked 303 Creative, for example, to challenge regulations on professional conduct. In Chiles v. Salazar, the challenger relied on 303 Creative’s rhetoric and argued that Colorado’s ban on conversion therapy reduces therapists to “mouthpieces of the government.”
Litigants have also turned to 303 Creative to resist digital regulations. In another recent Supreme Court decision, technology companies asked the Court to decide whether states can regulate online platforms’ content moderation practices—for example, by barring platforms from removing posts based on their viewpoints. The tech industry has pointed to 303 Creative to argue that the government cannot compel platforms to host speech that they do not want to carry.
Although the Court ultimately did not rely on 303 Creative to resolve those cases, litigants continue to invoke the decision to challenge regulation. In a pending Supreme Court case, a challenger argues that Colorado’s funding program constitutes compelled speech because participating schools cannot exclude children with LGBTQ+ parents while still receiving public funds.
What makes 303 Creative so appealing to litigants pursuing a deregulatory agenda, even outside the domain of antidiscrimination law?
303 Creative’s deregulatory potential lies in its embrace of an absolutist approach—a method of constitutional interpretation that carves out certain rights as categorically protected, no matter what justifications the government offers for limiting them.
The Supreme Court has long considered government’s justifications when evaluating the constitutionality of regulations. In past decades, the Court has developed three tiers of scrutiny: strict scrutiny, intermediate scrutiny, and rational basis review. Although each tier imposes a different degree of rigor, they essentially ask the same questions: What interest is the government pursuing? How closely do the chosen means relate to that goal? Even under the most demanding standard—strict scrutiny—the government may still restrict constitutional rights if it can show that the challenged regulation is “narrowly tailored” to serve a “compelling government interest.”
In recent years, however, the Court has gradually moved away from the level-of-scrutiny approach in some cases and adopted an absolutist approach instead.
New York State Rifle & Pistol Association v. Bruen is a case in point. In Bruen, the Court held that the constitutionality of a gun control regulation should be viewed solely in light of the “historical tradition of firearm regulation,” rendering irrelevant modern policy justifications on gun regulation—such as prevention of gun violence. Commentators have noted that Bruen has triggered a wave of lawsuits challenging a wide range of gun regulations.
303 Creative applied the same absolutist approach, carving out an untouchable set of rights granted in the First Amendment’s compelled speech doctrine.
Writing for the majority in 303 Creative, U.S. Supreme Court Justice Neil Gorsuch depicted the website designer’s refusal to provide service for same-sex couples as exercising “sincerely held religious conviction,” while portraying the Colorado government as a bad-faith actor with an intent to “eliminate ideas that differ from its own” through the enforcement of its antidiscrimination law.
Framing Colorado’s antidiscrimination law as compelling speech, Justice Gorsuch concluded that the Court need not engage in any attempt to reconcile the conflicting fundamental values at play, such as applying strict scrutiny to balance the website designer’s free speech right and government’s interest in guaranteeing the equal participation in economic marketplaces. Under the majority’s view, government is categorically barred from forcing individuals to express views that they disagree with.
Notably, 303 Creative marks the first time that the Supreme Court characterized an antidiscrimination law as compelling speech and applied the absolutist approach to such laws. In an earlier case involving sex discrimination, a private organization that excluded women from full membership claimed that Minnesota’s antidiscrimination law violated the First Amendment by compelling inclusion. The Court rejected the argument, reasoning that the state had a compelling interest in ensuring equal access to goods and services.
Because 303 Creative treats certain First Amendment rights as categorically protected, litigants need to show only one thing: that the challenged regulation compels speech. That single finding could allow litigants to establish that the challenged regulation—whether it be an antidiscrimination law, professional conduct standard, or platform governance rule—are off-limits without the need to engage in any balance of competing claims, such as whether the government’s interest outweighs their constitutional rights.
Moreover, due to the broad coverage of the First Amendment, 303 Creative’s deregulatory potential is amplified by the reality that almost any regulation can be somehow characterized as requiring speech. Employers could claim, for instance, that mandated health insurance coverage on contraception medication compels speech in violation of their sincerely held religious belief. Even rules clearly directed at conduct could be framed as compelling speech—as evident in 303 Creative itself. Before 303 Creative, the prevailing view had been that antidiscrimination laws regulate conduct, not speech.
303 Creative hands out a powerful, one-step deregulatory formula: If a regulation compels speech, it is simply not allowed. This absolutist approach has the power to take down much more than just antidiscrimination laws.
