Page:303 Creative LLC v. Elenis.pdf/22

16 same product to all. Brief for Respondents 15, 20. At bottom, Colorado’s theory rests on a belief that the Tenth Circuit erred at the outset when it said this case implicates pure speech. Id., at 19. Instead, Colorado says, this case involves only the sale of an ordinary commercial product and any burden on Ms. Smith’s speech is purely “incidental.” Id., at 18, 25–28; see Tr. of Oral Arg. 65, 97–98. On the State’s telling, then, speech more or less vanishes from the picture—and, with it, any need for First Amendment scrutiny. In places, the dissent seems to advance the same line of argument. (opinion of ).

This alternative theory, however, is difficult to square with the parties’ stipulations. As we have seen, the State has stipulated that Ms. Smith does not seek to sell an ordinary commercial good but intends to create “customized and tailored” speech for each couple. App. to Pet. for Cert. 181a, 187a. The State has stipulated that “[e]ach website 303 Creative designs and creates is an original, customized creation for each client.” Id., at 181a. The State has stipulated, too, that Ms. Smith’s wedding websites “will be expressive in nature, using text, graphics, and in some cases videos to celebrate and promote the couple’s wedding and unique love story.” Id., at 187a. As the case comes to us, then, Colorado seeks to compel just the sort of speech that it tacitly concedes lies beyond the reach of its powers.

Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.” Id., at 181a; see also (opinion of ) (emphasizing Ms. Smith’s “commercial” activity). But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were