Notice: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 21–476
303 CREATIVE LLC, ET AL., PETITIONERS v. AUBREY ELENIS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[June 30, 2023]
Justice Gorsuch delivered the opinion of the Court.
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.
I
A
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.” App. to Pet. for Cert. 182a, 187a, 198a. 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. Id., at 187a. The websites will be “expressive in nature,” designed “to communicate a particular message.” Id., at 181a. 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. Id., at 187a.
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. Id., at 184a. 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. See ibid.; see also Tr. of Oral Arg. 19–20. 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. App. to Pet. for Cert. 177a–190a. 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.
B
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. App. 303–305. 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. Susan B. Anthony List v. Driehaus, 573 U. S. 149, 159 (2014).
Toward that end, Ms. Smith began by directing the court to the Colorado Anti-Discrimination Act (CADA). That law defines a “public accommodation” broadly to include almost every public-facing business in the State. Colo. Rev. Stat. §24–34–601(1) (2022). In what some call its “Accommodation Clause,” the law prohibits a public accommodation from denying “the full and equal enjoyment” of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait. §24–34–601(2)(a). Either state officials or private citizens may bring actions to enforce the law. §§24–34–306, 24–34–602(1). And a variety of penalties can follow. Courts can order fines up to $500 per violation. §24–34–602(1)(a). The Colorado Commission on Civil Rights can issue cease-and-desist orders, §24–34–306(9), and require violators to take various other “affirmative action[s].” §24–34–605; §24–34–306(9). In the past, these have included participation in mandatory educational programs and the submission of ongoing compliance reports to state officials. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 8).[1]
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 to compel her to create websites celebrating marriages she does not endorse. 6 F. 4th 1160, 1173–1174 (CA10 2021). 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, 584 U. S., at ___ (slip op., at 9); see also App. 25–155 (discussing Colorado’s other past enforcement actions).
To facilitate the district court’s resolution of the merits of her case, Ms. Smith and the State stipulated to a number of facts:
- Ms. 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. App. to Pet. for Cert. 184a.
- She will not produce content that “contradicts biblical truth” regardless of who orders it. Ibid.
- Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction. Id., at 179a.
- All of the graphic and website design services Ms. Smith provides are “expressive.” Id., at 181a.
- The websites and graphics Ms. Smith designs are “original, customized” creations that “contribut[e] to the overall messages” her business conveys “through the websites” it creates. Id., at 181a–182a.
- Just like the other services she provides, the wedding websites Ms. Smith plans to create “will be expressive in nature.” Id., at 187a.
- Those wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage. Id., at 186a–187a.
- Viewers of Ms. Smith’s websites “will know that the websites are [Ms. Smith’s and 303 Creative’s] original artwork.” Id., at 187a.
- To the extent Ms. Smith may not be able to provide certain services to a potential customer, “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.” Id., at 190a.
C
Ultimately, the district court ruled against Ms. Smith. 405 F. Supp. 3d 907, 912 (Colo. 2019). So did the Tenth Circuit. 6 F. 4th, at 1168. For its part, the Tenth Circuit held that Ms. Smith had standing to sue. In that court’s judgment, she had established a credible threat that, if she follows through on her plans to offer wedding website services, Colorado will invoke CADA to force her to create speech she does not believe or endorse. Id., at 1172–1175. The court pointed to the fact that “Colorado has a history of past enforcement against nearly identical conduct—i.e., Masterpiece Cakeshop”; that anyone in the State may file a complaint against Ms. Smith and initiate “a potentially burdensome administrative hearing” process; and that “Colorado [has] decline[d] to disavow future enforcement” proceedings against her. Id., at 1174. Before us, no party challenges these conclusions.
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. Id., at 1176. 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., at 1178. 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. Ibid. 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.” Id., at 1179–1180 (internal quotation marks omitted).
Chief Judge Tymkovich dissented. He observed that “ensuring access to a particular person’s” voice, expression, or artistic talent has never qualified as “a compelling state interest” under this Court’s precedents. Id., at 1203. Nor, he submitted, should courts depart from those precedents now. “Taken to its logical end,” Chief Judge Tymkovich warned, his colleagues’ approach would permit the government to “regulate the messages communicated by all artists”—a result he called “unprecedented.” Id., at 1204.
We granted certiorari to review the Tenth Circuit’s disposition. 595 U. S. ___ (2022).
II
The framers designed the Free Speech Clause of the First Amendment to protect the “freedom to think as you will and to speak as you think.” Boy Scouts of America v. Dale, 530 U. S. 640, 660–661 (2000) (internal quotation marks omitted). They did so because they saw the freedom of speech “both as an end and as a means.” Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis, J., concurring); see also 12 The Papers of James Madison 193–194 (C. Hobson & R. Rutland eds. 1979). An end because the freedom to think and speak is among our inalienable human rights. See, e.g., 4 Annals of Cong. 934 (1794) (Rep. Madison). A means because the freedom of thought and speech is “indispensable to the discovery and spread of political truth.” Whitney, 274 U. S., at 375 (Brandeis, J., concurring). By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a Nation. For all these reasons, “[i]f there is any fixed star in our constitutional constellation,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is the principle that the government may not interfere with “an uninhibited marketplace of ideas,” McCullen v. Coakley, 573 U. S. 464, 476 (2014) (internal quotation marks omitted).
From time to time, governments in this country have sought to test these foundational principles. In Barnette, for example, the Court faced an effort by the State of West Virginia to force schoolchildren to salute the Nation’s flag and recite the Pledge of Allegiance. If the students refused, the State threatened to expel them and fine or jail their parents. Some families objected on the ground that the State sought to compel their children to express views at odds with their faith as Jehovah’s Witnesses. When the dispute arrived here, this Court offered a firm response. In seeking to compel students to salute the flag and recite a pledge, the Court held, state authorities had “transcend[ed] constitutional limitations on their powers.” 319 U. S., at 642. Their dictates “invade[d] the sphere of intellect and spirit which it is the purpose of the First Amendment … to reserve from all official control.” Ibid.
A similar story unfolded in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995). There, veterans organizing a St. Patrick’s Day parade in Boston refused to include a group of gay, lesbian, and bisexual individuals in their event. The group argued that Massachusetts’s public accommodations statute entitled it to participate in the parade as a matter of law. Id., at 560–561. Lower courts agreed. Id., at 561–566. But this Court reversed. Id., at 581. Whatever state law may demand, this Court explained, the parade was constitutionally protected speech and requiring the veterans to include voices they wished to exclude would impermissibly require them to “alter the expressive content of their parade.” Id., at 572–573. The veterans’ choice of what to say (and not say) might have been unpopular, but they had a First Amendment right to present their message undiluted by views they did not share.
Then there is Boy Scouts of America v. Dale. In that case, the Boy Scouts excluded James Dale, an assistant scoutmaster, from membership after learning he was gay. Mr. Dale argued that New Jersey’s public accommodations law required the Scouts to reinstate him. 530 U. S., at 644–645. The New Jersey Supreme Court sided with Mr. Dale, id., at 646–647, but again this Court reversed, id., at 661. The decision to exclude Mr. Dale may not have implicated pure speech, but this Court held that the Boy Scouts “is an expressive association” entitled to First Amendment protection. Id., at 656. And, the Court found, forcing the Scouts to include Mr. Dale would “interfere with [its] choice not to propound a point of view contrary to its beliefs.” Id., at 654.
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,” Hurley, 515 U. S., at 574, and likely to cause “anguish” or “incalculable grief,” Snyder v. Phelps, 562 U. S. 443, 456 (2011). Equally, the First Amendment protects acts of expressive association. See, e.g., Dale, 530 U. S., at 647–656; Hurley, 515 U. S., at 568–570, 579. Generally, too, the government may not compel a person to speak its own preferred messages. See Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 505–506 (1969); see also, e.g., Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974); Wooley v. Maynard, 430 U. S. 705, 714 (1977); National Institute of Family and Life Advocates v. Becerra, 585 U. S. ___, ___ (2018) (NIFLA) (slip op., at 8). 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. See Hurley, 515 U. S., at 568–570, 576; see also Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U. S. 47, 63–64 (2006) (FAIR) (discussing cases). All that offends the First Amendment just the same.
III
Applying these principles to this case, we align ourselves with much of the Tenth Circuit’s analysis. The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents. 6 F. 4th, at 1176. We agree. It is a conclusion that flows directly from the parties’ stipulations. They have stipulated that Ms. Smith’s websites promise to contain “images, words, symbols, and other modes of expression.” App. to Pet. for Cert. 181a. They have stipulated that every website will be her “original, customized” creation. Id., at 181a–182a. And they have stipulated that Ms. Smith will create these websites to communicate ideas—namely, to “celebrate and promote the couple’s wedding and unique love story” and to “celebrat[e] and promot[e]” what Ms. Smith understands to be a true marriage. Id., at 186a–187a.
A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed with a “voice that resonates farther than it could from any soapbox.” Reno v. American Civil Liberties Union, 521 U. S. 844, 870 (1997). All manner of speech—from “pictures, films, paintings, drawings, and engravings,” to “oral utterance and the printed word”—qualify for the First Amendment’s protections; no less can hold true when it comes to speech like Ms. Smith’s conveyed over the Internet. Kaplan v. California, 413 U. S. 115, 119–120 (1973); see also Shurtleff v. Boston, 596 U. S. ___, ___–___ (2022) (slip op., at 7–8) (flags); Brown v. Entertainment Merchants Assn., 564 U. S. 786, 790 (2011) (video games); Hurley, 515 U. S., at 568–570 (parades); Ward v. Rock Against Racism, 491 U. S. 781, 790 (1989) (music); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 501–502 (1952) (movies).
We further agree with the Tenth Circuit that the wedding websites Ms. Smith seeks to create involve her speech. 6 F. 4th, at 1181, and n. 5. Again, the parties’ stipulations lead the way to that conclusion. See App. to Pet. for Cert. 181a, 187a. As the parties have described it, Ms. Smith intends to “ve[t]” each prospective project to determine whether it is one she is willing to endorse. Id., at 185a. She will consult with clients to discuss “their unique stories as source material.” Id., at 186a. And she will produce a final story for each couple using her own words and her own “original artwork.” Id., at 182a–183a. Of course, Ms. Smith’s speech may combine with the couple’s in the final product. But for purposes of the First Amendment that changes nothing. An individual “does not forfeit constitutional protection simply by combining multifarious voices” in a single communication. Hurley, 515 U. S., at 569.
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. 6 F. 4th, at 1178. Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 633, 642 (1994). 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. 6 F. 4th, at 1178.
We part ways with the Tenth Circuit only when it comes to the legal conclusions that follow. While that court thought Colorado could compel speech from Ms. Smith consistent with the Constitution, our First Amendment precedents laid out above teach otherwise. In Hurley, the Court found that Massachusetts impermissibly compelled speech in violation of the First Amendment when it sought to force parade organizers to accept participants who would “affec[t] the[ir] message.” 515 U. S., at 572. In Dale, the Court held that New Jersey intruded on the Boy Scouts’ First Amendment rights when it tried to require the group to “propound a point of view contrary to its beliefs” by directing its membership choices. 530 U. S., at 654. And in Barnette, this Court found impermissible coercion when West Virginia required schoolchildren to recite a pledge that contravened their convictions on threat of punishment or expulsion. 319 U. S., at 626–629. Here, Colorado seeks to put Ms. Smith to a similar choice: 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. App. 120; supra, at 3. Under our precedents, that “is enough,” more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely. Hurley, 515 U. S., at 574.
Consider what a contrary approach would mean. Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait. 6 F. 4th, at 1198 (Tymkovich, C. J., dissenting). Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. Id., at 1199. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. See Brief for Petitioners 26–27. Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so. See, e.g., Brief for Creative Professionals et al. as Amici Curiae 5–10; Brief for First Amendment Scholars as Amici Curiae 19–22. As our precedents recognize, the First Amendment tolerates none of that.
In saying this much, we do not question the vital role public accommodations laws play in realizing the civil rights of all Americans. This Court has recognized that governments in this country have a “compelling interest” in eliminating discrimination in places of public accommodation. Roberts v. United States Jaycees, 468 U. S. 609, 628 (1984); see also Hurley, 515 U. S., at 571–572. This Court has recognized, too, that public accommodations laws “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 250 (1964) (internal quotation marks omitted); see also, e.g., Katzenbach v. McClung, 379 U. S. 294 (1964); Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400 (1968) (per curiam).
Over time, governments in this country have expanded public accommodations laws in notable ways too. Statutes like Colorado’s grow from nondiscrimination rules the common law sometimes imposed on common carriers and places of traditional public accommodation like hotels and restaurants. Dale, 530 U. S., at 656–657. Often, these enterprises exercised something like monopoly power or hosted or transported others or their belongings much like bailees. See, e.g., Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 437 (1889); Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14 (1894). Over time, some States, Colorado included, have expanded the reach of these nondiscrimination rules to cover virtually every place of business engaged in any sales to the public. Compare 1885 Colo. Sess. Laws pp. 132–133 (a short list of entities originally bound by the State’s public accommodations law) with Colo. Rev. Stat. §24–34–601(1) (currently defining a public accommodation to include “any place of business engaged in any sales to the public”).
Importantly, States have also expanded their laws to prohibit more forms of discrimination. Today, for example, approximately half the States have laws like Colorado’s that expressly prohibit discrimination on the basis of sexual orientation.[2] And, as we have recognized, this is entirely “unexceptional.” Masterpiece Cakeshop, 584 U. S., at ___ (slip op., at 10). States may “protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.” Ibid.; see also Hurley, 515 U. S., at 571–572; 6 F. 4th, at 1203 (Tymkovich, C. J., dissenting). Consistent with all of this, Ms. Smith herself recognizes that Colorado and other States are generally free to apply their public accommodations laws, including their provisions protecting gay persons, to a vast array of businesses. Reply Brief 15; see Tr. of Oral Arg. 45–46.
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. 515 U. S., at 571, 578. In Dale, the Court observed that New Jersey’s public accommodations law had many lawful applications but held that it could “not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association.” 530 U. S., at 659. And, once more, what was true in those cases must hold true here. When a state public accommodations law and the Constitution collide, there can be no question which must prevail. U. S. Const., Art. VI, cl. 2.
Nor is it any answer, as the Tenth Circuit seemed to suppose, that Ms. Smith’s services are “unique.” 6 F. 4th, at 1180. In some sense, of course, her voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes. In Hurley, the veterans had an “enviable” outlet for speech; after all, their parade was a notable and singular event. 515 U. S., at 560, 577–578. In Dale, the Boy Scouts offered what some might consider a unique experience. 530 U. S., at 649–650. But in both cases this Court held that the State could not use its public accommodations statute to deny speakers the right “to choose the content of [their] own message[s].” Hurley, 515 U. S., at 573; see Dale, 530 U. S., at 650–656. Were the rule otherwise, the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise.
IV
Before us, Colorado appears to distance itself from the Tenth Circuit’s reasoning. Now, the State seems to acknowledge that the First Amendment does forbid it from coercing Ms. Smith to create websites endorsing same-sex marriage or expressing any other message with which she disagrees. See Brief for Respondents 12 (disclaiming any interest in “interfer[ing] with [Ms. Smith’s] choice to offer only websites of [her] own design”); see also Brief for United States as Amicus Curiae 19 (conceding that “constitutional concerns” would arise if Colorado “require[d] petitione[r] to design a website” that she “would not create or convey for any client”). Instead, Colorado devotes most of its efforts to advancing an alternative theory for affirmance.
The State’s alternative theory runs this way. To comply with Colorado law, the State says, all Ms. Smith must do is repurpose websites she will create to celebrate marriages she does endorse for marriages she does not. She sells a product to some, the State reasons, so she must sell the same product to all. Brief for Respondents 15, 20. At bottom, Colorado’s theory rests on a belief that the Tenth Circuit erred at the outset when it said this case implicates pure speech. Id., at 19. Instead, Colorado says, this case involves only the sale of an ordinary commercial product and any burden on Ms. Smith’s speech is purely “incidental.” Id., at 18, 25–28; see Tr. of Oral Arg. 65, 97–98. On the State’s telling, then, speech more or less vanishes from the picture—and, with it, any need for First Amendment scrutiny. In places, the dissent seems to advance the same line of argument. Post, at 29 (opinion of Sotomayor, J.).
This alternative theory, however, is difficult to square with the parties’ stipulations. As we have seen, the State has stipulated that Ms. Smith does not seek to sell an ordinary commercial good but intends to create “customized and tailored” speech for each couple. App. to Pet. for Cert. 181a, 187a. The State has stipulated that “[e]ach website 303 Creative designs and creates is an original, customized creation for each client.” Id., at 181a. The State has stipulated, too, that Ms. Smith’s wedding websites “will be expressive in nature, using text, graphics, and in some cases videos to celebrate and promote the couple’s wedding and unique love story.” Id., at 187a. As the case comes to us, then, Colorado seeks to compel just the sort of speech that it tacitly concedes lies beyond the reach of its powers.
Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.” Id., at 181a; see also post, at 33 (opinion of Sotomayor, J.) (emphasizing Ms. Smith’s “commercial” activity). But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspapers. See, e.g., Joseph Burstyn, Inc., 343 U. S., at 497–503; Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 114–116 (1991); Grosjean v. American Press Co., 297 U. S. 233, 240–241, 249 (1936).
Colorado next urges us to focus on the reason Ms. Smith refuses to offer the speech it seeks to compel. She refuses, the State insists, because she objects to the “protected characteristics” of certain customers. Brief for Respondents 16; see also post, at 26–27, 31–32 (opinion of Sotomayor, J.) (reciting the same argument). But once more, the parties’ stipulations speak differently. The parties agree that Ms. Smith “will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites” do not violate her beliefs. App. to Pet. for Cert. 184a. That is a condition, the parties acknowledge, Ms. Smith applies to “all customers.” Ibid. Ms. Smith stresses, too, that she has not and will not create expressions that defy any of her beliefs for any customer, whether that involves encouraging violence, demeaning another person, or promoting views inconsistent with her religious commitments. See Tr. of Oral Arg. 18–20. Nor, in any event, do the First Amendment’s protections belong only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 468–469 (2007) (opinion of Roberts, C. J.) (observing that “a speaker’s motivation is entirely irrelevant” (internal quotation marks omitted)); National Socialist Party of America v. Skokie, 432 U. S. 43, 43–44 (1977) (per curiam) (upholding free-speech rights of participants in a Nazi parade); Snyder, 562 U. S., at 456–457 (same for protestors of a soldier’s funeral).[3]
Failing all else, Colorado suggests that this Court’s decision in FAIR supports affirmance. See also post, at 25–26 (opinion of Sotomayor, J.) (making the same argument). In FAIR, a group of schools challenged a law requiring them, as a condition of accepting federal funds, to permit military recruiters space on campus on equal terms with other potential employers. 547 U. S., at 51–52, 58. The only expressive activity required of the law schools, the Court found, involved the posting of logistical notices along these lines: “ ‘The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.’ ” Id., at 61–62. And, the Court reasoned, compelled speech of this sort was “incidental” and a “far cry” from the speech at issue in our “leading First Amendment precedents [that] have established the principle that freedom of speech prohibits the government from telling people what they must say.” Ibid.; see also NIFLA, 585 U. S., at ___ (slip op., at 8).
It is a far cry from this case too. To be sure, our cases have held that the government may sometimes “requir[e] the dissemination of purely factual and uncontroversial information,” particularly in the context of “commercial advertising.” Hurley, 515 U. S., at 573 (internal quotation marks omitted); see also NIFLA, 585 U. S., at ___ (slip op., at 8); Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795–796 (1988). But this case involves nothing like that. Here, Colorado does not seek to impose an incidental burden on speech. It seeks to force an individual to “utter what is not in [her] mind” about a question of political and religious significance. Barnette, 319 U. S., at 634. And that, FAIR reaffirmed, is something the First Amendment does not tolerate. No government, FAIR recognized, may affect a “speaker’s message” by “forc[ing]” her to “accommodate” other views, 547 U. S., at 63; no government may “ ‘alter’ ” the “ ‘expressive content’ ” of her message, id., at 63–64 (alteration omitted); and no government may “interfer[e] with” her “desired message,” id., at 64.
V
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, post, at 7–13, and the strides gay Americans have made towards securing equal justice under law, post, at 14–17. 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. Post, at 24–29. Forget Colorado’s stipulation that Ms. Smith’s activities are “expressive,” App. to Pet. for Cert. 181a, and the Tenth Circuit’s conclusion that the State seeks to compel “pure speech,” 6 F. 4th, at 1176. The dissent chides us for deciding a pre-enforcement challenge. Post, at 23. 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. 6 F. 4th, at 1172–1175. The dissent suggests (over and over again) that any burden on speech here is “incidental.” Post, at 24, 26–30, 32–33. 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. 6 F. 4th, at 1178.[4]
Nor does the dissent’s reimagination end there. It claims that, “for the first time in its history,” the Court “grants a business open to the public” a “right to refuse to serve members of a protected class.” Post, at 1; see also id., at 26, n. 10, 35. Never mind that we do no such thing and Colorado itself has stipulated Ms. Smith will (as CADA requires) “work with all people regardless of … sexual orientation.” App. to Pet. for Cert. 184a. Never mind, too, that it is the dissent that would have this Court do something truly novel by allowing a government to coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own.
There is still more. The dissent asserts that we “sweep under the rug petitioners’ challenge to CADA’s Communication Clause.” Post, at 26. This despite the fact the parties and the Tenth Circuit recognized that Ms. Smith’s Communication Clause challenge hinges on her Accommodation Clause challenge. (So much so that Colorado devoted less than two pages at the tail end of its brief to the Communication Clause and the Tenth Circuit afforded it just three paragraphs in its free-speech analysis. See Brief for Respondents 44–45; 6 F. 4th, at 1182–1183.)[5] The dissent even suggests that our decision today is akin to endorsing a “separate but equal” regime that would allow law firms to refuse women admission into partnership, restaurants to deny service to Black Americans, or businesses seeking employees to post something like a “White Applicants Only” sign. Post, at 1, 16–21, 26, 28–29, 32, and n. 13, 37. Pure fiction all.
In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, post, at 27, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include,” post, at 28. But if that is true, what are we even debating?
Instead of addressing the parties’ stipulations about the case actually before us, the dissent spends much of its time adrift on a sea of hypotheticals about photographers, stationers, and others, asking if they too provide expressive services covered by the First Amendment. Post, at 27–29, 31–32, 37. But those cases are not this case. Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind. The parties have stipulated that Ms. Smith seeks to engage in expressive activity. And the Tenth Circuit has recognized her services involve “pure speech.” See supra, at 6, 9. Nothing the dissent says can alter this—nor can it displace the First Amendment protections that follow.
The dissent’s treatment of precedent parallels its handling of the facts. Take its remarkable suggestion that a government forcing an individual to create speech on weighty issues with which she disagrees—all, as the Tenth Circuit found, with the goal of “[e]liminating” views it does not share, 6 F. 4th, at 1178—only “incidental[ly]” burdens First Amendment liberties. Post, at 26–35. Far from embracing a notion like that, our cases have rejected it time after time—including in the context of public accommodations laws. See Parts II–IV, supra; FAIR, 547 U. S., at 61–64 (no government may affect a “speaker’s own message” by “forc[ing]” her to “accommodate” views she does not hold); Hurley, 515 U. S., at 563, 566 (using a public accommodations law to compel parade organizers to include speech they did not believe was no mere “ ‘incidental’ ” infringement on First Amendment rights); Dale, 530 U. S., at 659 (employing a public accommodations law to require the Boy Scouts to alter their admissions policies had more than “an incidental effect on protected speech”).[6]
When it finally gets around to discussing these controlling precedents, the dissent offers a wholly unpersuasive attempt to distinguish them. The First Amendment protections furnished in Barnette, Hurley, and Dale, the dissent declares, were limited to schoolchildren and “nonprofit[s],” and it is “dispiriting” to think they might also apply to Ms. Smith’s “commercial” activity. Post, at 32–35. But our precedents endorse nothing like the limits the dissent would project on them. Instead, as we have seen, the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers). See supra, at 16–17. If anything is truly dispiriting here, it is the dissent’s failure to take seriously this Court’s enduring commitment to protecting the speech rights of all comers, no matter how controversial—or even repugnant—many may find the message at hand.
Finally, the dissent comes out and says what it really means: Once Ms. Smith offers some speech, Colorado “would require [her] to create and sell speech, notwithstanding [her] sincere objection to doing so”—and the dissent would force her to comply with that demand. Post, at 29–30. Even as it does so, however, the dissent refuses to acknowledge where its reasoning leads. In a world like that, as Chief Judge Tymkovich highlighted, governments could force “an unwilling Muslim movie director to make a film with a Zionist message,” they could compel “an atheist muralist to accept a commission celebrating Evangelical zeal,” and they could require a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions from the public with different messages. 6 F. 4th, at 1199 (dissenting opinion). Perhaps the dissent finds these possibilities untroubling because it trusts state governments to coerce only “enlightened” speech. But if that is the calculation, it is a dangerous one indeed.[7]
The dissent is right about one thing—“[w]hat a difference” time can make. See post, at 2 (internal quotation marks omitted). Eighty years ago in Barnette, this Court affirmed that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” 319 U. S., at 642. The Court did so despite the fact that the speech rights it defended were deeply unpopular; at the time, the world was at war and many thought respect for the flag and the pledge “essential for the welfare of the state.” Id., at 662–663 (Frankfurter, J., dissenting); see also id., at 636, 640 (majority opinion). Fifty years ago, this Court protected the right of Nazis to march through a town home to many Holocaust survivors and along the way espouse ideas antithetical to those for which this Nation stands. See Skokie, 432 U. S., at 43–44; supra, at 17–18. Five years ago, in a case the dissenters highlight at the outset of their opinion, the Court stressed that “it is not … the role of the State or its officials to prescribe what shall be offensive.” Masterpiece Cakeshop, 584 U. S., at ___ (slip op., at 16). And just days ago, Members of today’s dissent joined in holding that the First Amendment restricts how States may prosecute stalkers despite the “harm[ful],” “low-value,” and “upsetting” nature of their speech. Counterman v. Colorado, 600 U. S. ___, ___ (2023) (slip op., at 6); id., at ___ (Sotomayor, J., concurring in part and concurring in judgment) (slip op., at 5).
Today, however, the dissent abandons what this Court’s cases have recognized time and time again: A commitment to speech for only some messages and some persons is no commitment at all. By approving a government’s effort to “[e]liminat[e]” disfavored “ideas,” 6 F. 4th, at 1178, today’s dissent is emblematic of an unfortunate tendency by some to defend First Amendment values only when they find the speaker’s message sympathetic. But “[i]f liberty means anything at all, it means the right to tell people what they do not want to hear.” 6 F. 4th, at 1190 (Tymkovich, C. J., dissenting) (quoting G. Orwell). * 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,” post, at 38 (opinion of Sotomayor, J.), “misguided, or even hurtful,” Hurley, 515 U. S., at 574. 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
- ↑ In addition to the Accommodation Clause, CADA contains a “Communication Clause” that prohibits a public accommodation from “publish[ing] … any written … communication” indicating that a person will be denied “the full and equal enjoyment” of services or that he will be “unwelcome, objectionable, unacceptable, or undesirable” based on a protected classification. Colo. Rev. Stat. §24–34–601(2)(a) (2022). The Communication Clause, Ms. Smith notes, prohibits any speech inconsistent with the Accommodation Clause. Because Colorado concedes that its authority to apply the Communication Clause to Ms. Smith stands or falls with its authority to apply the Accommodation Clause, see Brief for Respondents 44–45, we focus our attention on the Accommodation Clause.
- ↑ Besides Colorado, this includes Cal. Civ. Code Ann. §51 (West 2020); Conn. Gen. Stat. §46a–81d (2021); Del. Code Ann., Tit. 6, §4504 (2019); Haw. Rev. Stat. §489–3 (Cum. Supp. 2021); Ill. Comp. Stat., ch. 775, §5/1–102 (West 2021); Iowa Code §216.7 (2022); Me. Rev. Stat. Ann., Tit. 5, §4591 (2013); Md. State Govt. Code Ann. §20–304 (2021); Mass. Gen. Laws, ch. 272, §98 (2021); Mich. Comp. Laws Ann. §37.2302 (West 2013); Minn. Stat. §363A.11 (2022); Nev. Rev. Stat. §651.070 (2017); N. H. Rev. Stat. Ann. §354–A:17 (2022); N. J. Stat. Ann. §10:5–12 (West 2013); N. M. Stat. Ann. §28–1–7 (2022); N. Y. Exec. Law Ann. §291(2) (West 2019); Ore. Rev. Stat. §659A.403 (2021); R. I. Gen. Laws §11–24–2 (2002); Vt. Stat. Ann., Tit. 9, §4502(a) (2020); Va. Code Ann. §2.2–3904 (2022); Wash. Rev. Code §49.60.215 (2022); Wis. Stat. §106.52 (2019–2020). See also Brief for Local Governments et al. as Amici Curiae 5 (noting that many local governments have enacted similar rules).
- ↑ The dissent labels the distinction between status and message “amusing” and “embarrassing.” Post, at 32. But in doing so, the dissent ignores a fundamental feature of the Free Speech Clause. While it does not protect status-based discrimination unrelated to expression, generally it does protect a speaker’s right to control her own message—even when we may disapprove of the speaker’s motive or the message itself. The dissent’s derision is no answer to any of this. It ignores, too, the fact that Colorado itself has, in other contexts, distinguished status-based discrimination (forbidden) from the right of a speaker to control his own message (protected). See App. 131, 137, 140, 143–144, 149, 152, 154. (Truth be told, even the dissent acknowledges “th[is] distinction” elsewhere in its opinion. Post, at 31, n. 11.) Nor is the distinction unusual in societies committed both to nondiscrimination rules and free expression. See, e.g., Lee v. Ashers Baking Co. Ltd., [2018] UKSC 49, p. 14 (“The less favourable treatment was afforded to the message not to the man.”). Does the dissent really find all that amusing and embarrassing?
- ↑ Perplexingly, too, the dissent suggests that, by recounting the Tenth Circuit’s conclusion on this score, we “misunderstan[d] this case” and “invo[ke] … Orwellian thought policing.” Post, at 34, n. 14.
- ↑ Why does the dissent try to refocus this case around the Communication Clause? Perhaps because the moment one acknowledges the parties’ stipulations—and the fact Colorado seeks to use its Accommodation Clause to compel speech in order to ensure conformity to its own views on a topic of major significance—the First Amendment implications become obvious. As does the fact that our case is nothing like a typical application of a public accommodations law requiring an ordinary, non-expressive business to serve all customers or consider all applicants. Our decision today does not concern—much less endorse—anything like the “ ‘straight couples only’ ” notices the dissent conjures out of thin air. Post, at 26, n. 10. Nor do the parties discuss anything of the sort in their stipulations.
- ↑ The dissent observes that public accommodations laws may sometimes touch on speech incidentally as they work to ensure ordinary, non-expressive goods and services are sold on equal terms. Cf. post, at 24–27 (citing Sorrell v. IMS Health Inc., 564 U. S. 552 (2011); Rumsfeld v. FAIR, 547 U. S. 47 (2006); United States v. O’Brien, 391 U. S. 367 (1968)). But as Hurley observed, there is nothing “incidental” about an infringement on speech when a public accommodations law is applied “peculiar[ly]” to compel expressive activity. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 572 (1995).
- ↑ Perhaps the dissent finds these possibilities untroubling for another reason. It asserts that CADA does not apply to “[m]any filmmakers, visual artists, and writers” because they do not “hold out” their services to the public. Post, at 27. But the dissent cites nothing to support its claim and instead, once more, fights the facts. As we have seen, Colorado’s law today applies to “any place of business engaged in any sales to the public.” Colo. Rev. Stat. §24–34–601(1) (emphasis added); see also Part III, supra. And the dissent can hardly dispute that many artists and writers accept commissions from the public. Brief for Creative Professionals et al. as Amici Curiae 5–21. Certainly, Colorado does not advance anything like the dissent’s argument; it calls any exemption to its law for “artists” and others who provide “custom” services “unworkable.” Brief for Respondents 28–31 (internal quotation marks omitted).
The dissent notes that our case law has not sustained every First Amendment objection to an antidiscrimination rule, as with a law firm that sought to exclude women from partnership. Post, at 19–21 (citing Hishon v. King & Spalding, 467 U. S. 69 (1984); Roberts v. United States Jaycees, 468 U. S. 609 (1984)). But the dissent disregards Dale’s holding that context matters and that very different considerations come into play when a law is used to force individuals to toe the government’s preferred line when speaking (or associating to express themselves) on matters of significance. Boy Scouts of America v. Dale, 530 U. S. 640, 648–653 (2000).