Page:303 Creative LLC v. Elenis.pdf/5

Syllabus

578; Dale, 530 U. S., at 659. As in those cases, when Colorado’s public accommodations law and the Constitution collide, there can be no question which must prevail. U. S. Const. Art. VI, §2.

As the Tenth Circuit 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.” 6 F. 4th, at 1179–1180 (internal quotation marks omitted). 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. The speaker in Hurley had an “enviable” outlet for speech, and the Boy Scouts in Dale offered an arguably unique experience, but in both cases this Court held that the State could not use its public accommodations statute to deny a speaker the right “to choose the content of his own message.” Hurley, 515 U. S., at 573; see Dale, 530 U. S., at 650–656. A rule otherwise would conscript any unique voice to disseminate the government’s preferred messages in violation of the First Amendment. Pp. 9–15.

(c) Colorado now seems to acknowledge that the First Amendment does prohibit it from coercing Ms. Smith to create websites expressing any message with which she disagrees. Alternatively, Colorado contends, Ms. Smith must simply provide the same commercial product to all, which she can do by repurposing websites celebrating marriages she does endorse for marriages she does not. Colorado’s theory rests on a belief that this case does not implicate pure speech, but rather the sale of an ordinary commercial product, and that any burden on Ms. Smith’s speech is purely “incidental.” On the State’s telling, then, speech more or less vanishes from the picture—and, with it, any need for First Amendment scrutiny. Colorado’s alternative theory, however, does not sit easily with its stipulation that Ms. Smith does not seek to sell an ordinary commercial good but intends to create “customized and tailored” expressive speech for each couple “to celebrate and promote the couple’s wedding and unique love story.” Colorado seeks to compel just the sort of speech that it tacitly concedes lies beyond its reach.

The State stresses that Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.” But many of the world’s great works of literature and art were created with an expectation of compensation. And speakers do not shed their First Amendment protections by employing the corporate form to disseminate their speech. Colorado urges the Court to look at the reason Ms. Smith refuses to offer the speech it seeks to compel, and it claims that the reason is that she objects to the “protected characteristics” of certain customers. But the parties’ stipula-