Protecting the Free Speech of Companies? The US Supreme Court decision in 303 Creative LLC v Elenis

by | Aug 2, 2023

author profile picture

About Eduardo Gill-Pedro

Eduardo is Associate Professor in EU law and Ragnar Söderberg Senior Research Fellow at the Faculty of Law, Lund University. He is currently conducting a research project focused on the fundamental rights of companies in European law. In addition he is Associate Senior Lecturer in Law and AI, focusing on the role of corporations in AI governance.

In 303 Creative LLC et al. v Elenis, the US Supreme Court held that the petitioners were entitled to refuse to provide wedding website services in respect of same sex weddings, and to post a notice on their website stating that they would not provide such services.

The case was framed as concerning the freedom of speech of the website designer (Ms Lorie Smith), although the main petitioner was not Ms Smith but 303 Creative LLC. As such, this case concerned the constitutional right to free speech of a company. Thus, the broader issue of the extension of human rights to legal persons – which can be observed not only in US law, but in European and international human rights law also – has important and potentially problematic ramifications.

Justice Gorsuch, writing the majority Opinion, framed the case by affirming that the State (Colorado) “seeks to use its law to compel an individual to create speech she does not believe”. He then noted that Ms Smith “worries that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief”. In order to “clarify her rights, Ms. Smith filed a lawsuit in federal […] court”. These comments make no mention of 303 Creative LLC, and fail to acknowledge that Ms Smith was a party to the proceedings only in her capacity as owner of the primary petitioner (303 Creative LLC). This is significant because, to the extent that the State law ‘compels’ anyone to create speech, it compels 303 Creative: it is the company that is required not to discriminate.

The only reference Justice Gorsuch makes to the fact that the main petitioner is a company is to note that “speakers [do not] shed their First Amendment protections by employing the corporate form to disseminate their speech”. This seems to present the company as merely a garb which individuals can put on or remove at their choosing.

This is a profound misrepresentation of the nature of the company. 303 Creative LLC is a limited liability company, and therefore exists as a separate legal person from its members, even where there is only a single member. Members do not own the LLC’s assets – they are owned by the LLC itself, and members are not entitled to use the company’s assets for their own personal purposes. Nor are they generally personally responsible for the LLC’s liabilities. Furthermore, it was not Ms Smith that created the corporate entity 303 Creative LLC. Rather, because companies are creatures of law, it was the State that, by incorporating the company as a legal person, brought it into being.

The freedom of speech that was at stake in this case was primarily the freedom of the company. However, the majority presented the case as a conflict between the interests of the state and Ms Smith’s personal freedom of speech and belief.

Companies are not human beings. We refer to them as ‘legal persons’ and this metaphor of the ‘person’ can create the appearance that ‘corporations are people’, as Mitt Romney famously said. This metaphor is, however, misleading. It is not just that companies have ‘no soul to damn, no body to kick’ as the old saying goes. In modern capitalist societies companies can deploy resources and pursue objectives beyond the reach of any natural person. Of course, 303 Creative does not appear to be this powerful, but there is nothing in the majority opinion that would suggest that this precedent will not extend to other types of companies.

As 303 Creative v Elenis demonstrates, the extension of fundamental rights to companies can limit severely the ability of states to regulate those companies, in order to achieve objectives in the public interest. It disembodies companies from the political structures of accountability and control in the legal orders within which those companies operate. We should also remember that human rights, or constitutional rights, are seen as a particularly important kind of legal norms, which have both a legal and a moral force. On this basis, if we extend the protection of human rights to artificial corporate entities, we risk the ‘dehumanisation’ of human rights, with the potential to undermine the legitimacy of human rights law.

Want to learn more?

Share this:

Related Content


Submit a Comment