On June 30, 2023, the United States Supreme Court released its ruling in 303 Creative LLC v. Elenis. The court ruled that Colorado-based web designer and graphic artist Lorie Smith could lawfully refuse to create websites for same-sex “weddings.”
This ruling, centered around the oscillating and amorphous idea of “expressive speech,” involves many concepts and queries that are central to media literacy and media studies.
Insisting that promoting queer marriages defied her Christian beliefs, Smith worried that refusing to create for same-sex weddings would violate the Colorado Anti-Discrimination Act (CADA).
CADA prevents businesses that serve the general public from discriminating against customers based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” Expecting that her business would breach CADA, Smith mounted a pre-enforcement challenge or a challenge that precedes an anticipated violation of a law.
Smith sued. She sued before she had even promoted her new website service.
After sifting through dense hypotheticals and grappling with intangibles and ideals, the Supreme court ruled with Smith. The majority argued that CADA in fact infringed on her rights. The court ruled that by mandating she create promotion for queer weddings, CADA inhibits Smith’s First Amendment Right. CADA compels her speech.
303 Creative LLC v. Elenis seemingly engages, overlooks, and defines ideas that are inextricable from and fundamental to media studies. This case inspires plentiful questions; it exposes fruitful tensions; and it quietly probes the sickly blight of homophobia and discrimination on the body of law.
As I ruminate over the case and approach it with a background in media studies, I hope to recognize and deepen the case’s areas of tension in order to enrich and complicate the decision’s rationale.
Tensions
The principal tension I want to look at is the tension that rests at the center of the case– the question of whether Lorie Smith’s web design constitutes speech or conduct. Lorie Smith and the majority maintain that Smith’s web design constitutes speech; Colorado and the dissent advance that her design is conduct- a commercial transaction, a service or good.
As Smith testifies and the majority opinion relays, Smith’s web design is “original,” “expressive,” and “tailored.”
Judge Neil M. Gorsuch writes in the majority opinion,
“[The Tenth Circuit Court has] stipulated that Ms. Smith’s websites promise to contain ‘images, words, symbols, and other modes of expression.’ They have stipulated that every website will be her ‘original, customized’ creation. 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.”
Within the same vein of reason, Smith contends that she is not discriminating against a protected class of people, but that she is instead refusing to service a particular message.
The dissent challenges the majority’s rationale, reasoning that the question of whose speech is irrelevant. CADA does not regulate speech. CADA, indeed, regulates “only businesses that choose to sell goods or services ‘to the general public.’”
Justice Sonia Sotomayor argues that by offering her services to the “general public,” CADA lawfully regulates Smith’s conduct.
Colorado similarly contends that the inherently commercial nature of her business influences the case. The state emphasizes that “to the extent there is a message communicated in designing a website, Colorado says it is an expression by the customer, not the business owner.”
Here, I would like to elaborate upon this tension and put it in conversation with media studies.
The disputed question of speech, the inherently commercial character of the business, and the lurking presence of digital media inspire two thoughts upon which I will elaborate–
- Can Lorie Smith so easily claim authorship of this “expressive speech?” Whose message does the web design communicate?
- Can the message at hand truly be so easily divorced from the people it represents?
Whose message is the website?
One of the more pressing questions in the case is the question of whose speech- whose message- does the hypothetical website represent. Smith insists that it is her own; Colorado argues that it is the customer’s. Of course, the question is more complex than the case lets on. This case speaks to the complexities of digitally mediated messages. It demonstrates that the commercial internet muddles authorship.
The internet invites an expanded understanding of authorship. Two unique characteristics of the internet compel this broadened understanding: the first being that the internet is especially multimodal, constantly employing a variety of mediums- text, photographics, video, sound, graphics; the second, the internet is oftentimes interactive. Users are able to participate in digital media.
Authorship is no longer linear or static. Websites swell with various mediums.They teem with reproduced images and quoted texts. They overflow with recontextualized video. And with each new comment, post, or contribution, the content and the message ripple and transform.
Lorie Smith’s hypothetical websites are no different. They will likely include photographs she did not take, quoted words she did not say, and comments she did not type. She will not be the exclusive author of the website.
The message is not hers.
In his seminal work, Marshall McLuhan declares, “the medium is the message.” He complicates the conventional understanding of content and messages, supporting the idea that a message is larger than its content and author. Instead, the message is a negotiation between the medium, the content, the format, the author, and the larger cultural context.
Lorie Smith surely configures the format (via the platform WordPress nonetheless). The hypothetical couple provides the content (the originating “actual process of thought”). The internet furnishes multiplying iterations of interaction.
The message is not Smith’s.
Can the message be so easily divorced from the people it signifies?
While Justice Gorsuch adamantly argues that the message is Smith’s, he elaborates by advancing the rationale that Smith is not discriminating against a protected class of people but rather a particular message.
Smith offers that she will work with queer people, but she will not condone messages that support same-sex couples.
The court asserts this argument by demonstrating that if a queer couple requests a wedding website for straight friends, Lorie Smith would serve them. Justice Sotomayor addresses this argument in her dissent, writing “this logic would be amusing if it were not so embarrassing.”
This semantic sleight of hand- the swap of a protected class of people for a message- is deceptive. Can the two truly be so easily separated?
To me, this question immediately calls back to the writings of the cultural theorist Stuart Hall. It lingers on Hall’s synopsis of semiotics, the study of signs, and representation where he borrows from linguist Ferdinand Saussure and theorist Roland Barthes.
Hall explains the relationship between the sign, the signifier, and the signified.
Put briefly, the sign (the communication of a message) consists of two elements: the signifier (the form- a word, image, sound, etc) and the signified (the concept being communicated). The linking of the signifier to the signified is arbitrary. The word tree does not inherently represent the concept of a tree. It is not innate nor natural, but rather the connection is relational, coded, and culturally constructed.
Citing Barthes, Hall explains that signs work on the level of language and on a broader cultural level. Not only do signs denote or descriptively represent concepts, but they also connote or connect to broader, culturally-rich meaning.
Let’s return to 303 Creative LLC.
Smith’s hypothetical website can be read as a sign (composed of many other signs). The website denotes that two people of the same sex are to be married. Among other interpretations, Smith posits that it connotes that queer relationships are legitimate.
Working on various entangled and incremental levels, many signifiers work to construct this broader connotation. Hypothetically of course, gendered names, graphics of diamond rings, and pictures of the couple all produce this message. These components are both signs and signifiers. As signifiers, they represent people, and queer identities (and in the case of images, indexically so) and as signs, they work to connote a message that validates and promotes a queer marriage.
Serving this dual purpose, these visuals cannot be so easily removed from the broader message. They are relational and constituting. Representing a protected class of people, these sign/signifiers help to construct the message.
So, in total, it’s true. Smith is discriminating against a message.
However, she is also discriminating against a protected class of people. Queer people cannot so easily be removed.
Ultimately, 303 Creative LLC is a complex case.
Theoretically, it is entangled with media studies, interrogating questions of authorship and immersing itself in the legacies of Marshall McLuhan and Stuart Hall. These schools of thought remind us that not only is the message not solely Smith’s, but that queer people cannot be divorced from the message.
As I discuss mediation and signification, I am drawn to think of another concept– the symbol. And I am reminded of a harrowing sentence that Justice Sotomayor writes in her dissent…
“The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”
I appreciate this detailed analysis and learned so much.