Brief of Professor Tobias B. Wolff as Amicus Curiae in Support of Respondents in U.S. Supreme Court Case 303 Creative LLC v. Elenis

This Court should reject Petitioner’s attempt to cloak its discriminatory business conduct in the mantle of free speech. The Speech Clause of the First Amendment has never been a license for businesses to discriminate in the commercial marketplace. To the contrary, an unbroken line of cases has rejected all such attempts. When a business sells goods and services in the market, it is not a street corner speaker engaging in a personal act of expression. Customers do not pay for the privilege of promoting a commercial vendor’s own message. Customers pay for goods and services chosen by them and tailored to their needs. Selling goods and services in the marketplace is commercial conduct that the State may regulate, and anti-discrimination statutes like the Colorado Anti-Discrimination Act (CADA) do not provoke any First Amendment scrutiny in that setting. This proposition holds equally true when a business sells a product or service that involves creative or artistic skill