This amicus brief, filed in support of the Colorado anti-discrimination law in 303 Creative v. Elenis, is the product of about ten years of work on these First Amendment issues as a scholar and advocate. Its arguments rest on a core proposition: When a business sells goods and services in the public marketplace, it is not a street corner speaker engaging in a personal act of expression, it is a vendor engaged in commerce. Customers do not pay for the privilege of promoting a commercial vendor’s own personal message, they pay for goods and services chosen by them and tailored to their needs. Many vendors bring distinctive talents and skills to their work, which is why people are willing to pay for their goods and services. The requirement that a business observe generally applicable anti-discrimination laws does not transform into compelled speech simply because a business sells goods and services that involve creative or artistic skill. The First Amendment shields artists, wordsmiths and creators from government dictates when they follow their muse and produce their own work and it protects them from being targeted for the expressive content of their services. The First Amendment emphatically does not empower artists to set up a no-Jews-allowed store in the public marketplace – or no gays allowed, or no Latinos allowed -- in violation of the public accommodations laws that all businesses must follow.
CADA, Colorado Anti-Discrimination Act, First Amendment, Free Speech, Anti-Discrimination, Supreme Court of the United States, SCOTUS, Compelled Speech, Public Accommodation, Religious Freedom
Wolff, Tobias Barrington, "Brief of Professor Tobias B. Wolff as Amicus Curiae in Support of Respondents in U.S. Supreme Court Case 303 Creative LLC v. Elenis" (2022). Faculty Scholarship at Penn Carey Law. 2870.