Arizona Attorney General Mark Brnovich Urges Supreme Court to Protect Free Speech of Small Business Owners

Arizona Attorney General Mark Brnovich, co-leading a coalition of 20 states, filed an amicus brief urging the Supreme Court of the United States (SCOTUS) to defend the First Amendment rights of business owners. In 303 Creative v. Elenis, the coalition argues that states cannot use their public accommoda­tion laws to force business owners to create custom speech.

Lorie Smith, who owns 303 Creative in Colorado, is a graphic artist and website designer. Smith wants to expand her business into wedding websites, but her religious beliefs prohibit her from promoting same-sex weddings. Under Colorado’s anti-discrimination law, the Tenth Circuit Court of Appeals said that if Smith designs websites for opposite-sex weddings, she is required to create websites for same-sex weddings. Smith sued to allege that Colorado’s law violates her rights under the First Amendment.

“Owners of small companies do not give up their constitutional rights as a cost of doing business,” said Arizona Attorney General Mark Brnovich. “Freedoms of speech, belief, and expression are at the core of who we are as Americans, and our government is out of line to infringe on them.”

The amicus brief argues:

  • Because Smith speaks through her custom de­sign work, Colorado cannot force her to address the topic of same-sex marriage—let alone to “express approval and celebration” of same-sex marriage, as the Tenth Circuit’s decision would force her to do.
  • SCOTUS’s precedents have banned compelled speech without nullifying public accommodation laws.
  • Colorado cannot satisfy strict scrutiny here.
Joining Arizona are the states of Nebraska, Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Ohio, Oklahoma, South Carolina, Tennessee, Utah, and West Virginia.

General Brnovich also co-led an amicus brief of 16 states in October 2021 urging SCOTUS to accept this case.

Copy of amicus brief here.

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