A private firm legally refuses to service fossil fuel companies, and we sing their praises. Under the same federal law, businesses may discriminate on the basis of sexual orientation.
The Republican-dominated SCOTUS expanded First Amendment rights for private operations in the public marketplace in a controversial June 2023 decision, opening the doors for continual blows to LGBTQ+ and other unprotected parties’ legal rights. This setback in anti-discrimination law must be put to good use — not to discriminate against social identity groups that deserve legal protection, but to discriminate against entities that continue to exploit the environment.
The Supreme Court decision has dismantled state public accommodation laws for those who manufacture “expressive goods” — services offered by marketing firms to family photographers all fall under that umbrella. Any business involved in conveying a customer’s message that conflicts with their own ethical or religious beliefs (say, a Ukrainian film director commissioned to create a pro-Putin documentary) reserves a right to reject the offer, according to the majority opinion of 303 Creative LLC v. Elenis. Though sensible in some cases, the decision is also a victory for religious conservatives seeking to expand the reach of the First Amendment into the rights of previously protected classes.
Given the power of businesses to exercise such broad discriminatory powers, ensuring that those obstructing climate progress be shut out of the public marketplace is a way to utilize this free expression to advance a pro-climate agenda. Imagine if large oil companies had limited access to consulting firms, attorneys, accounting firms, and marketing agencies, who all disapproved of the continued burning of fossil fuels — perhaps then the oil and gas industry would elect to incorporate a more climate-conscious attitude.
The Implications of 303 Creative
The U.S. Supreme Court delivered its 6–3 decision regarding 303 Creative LLC v. Elenis on the final day of one of the most contentious terms in history, siding with a Christian web designer who refused to create custom wedding websites for gay couples.
Colorado’s current anti-discrimination law CADA prohibits businesses in the public marketplace from discriminating against customers’ “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” (Colorado is one of twenty-one U.S. states that includes sexual orientation as a protected class.) Devout Coloradan Christian and successful litigant Lorie Smith, seeking to expand her web design services to custom wedding websites, refused to “communicate ideas or messages… inconsistent with [her] religious beliefs”.
According to the majority opinion penned by Trump-appointed justice Neil Gorsuch, the win rested on the notion that free expression outweighs the duty of anti-discrimination when providing “expressive” goods and services. “Expressive” businesses can cite both ethical and religious reasons for refusing to sell to or service certain members of the public, falling under the grounds of free speech.
Critics of the court and members of the LGBTQ+ community are outraged. The decision ultimately expands religious freedom to allegations of LGBTQ+ discrimination, and confirms that sexual orientation is not protected against discrimination under federal law.
Yet had the decision swung the opposite way, free expression by individual companies and public services may have looked a lot different in the future. Businesses may no longer have had the ability to cut ties with tobacco companies or gun manufacturers. Attorneys would be required to represent ideas they were ethically against, and marketing professionals would be legally required to promote goods and companies they deemed harmful. Through that lens, the 303 Creative decision is a crucial promoter of free speech and individual advancement of important social causes. Simultaneously, unprotected groups like undocumented immigrants, those with criminal records, and trans individuals may continue to be turned away from businesses that profit from the public market.
A ruling in either direction seems to promote discrimination and/or compelled speech. Whether in agreement with the ruling or not, it still stands; and since companies are granted this expansive discriminatory power, it is imperative to utilize it against harmful, destructive groups, turning a controversial SCOTUS decision into a mode of climate activism.
How to Take Action
With a regression in anti-discrimination laws on one end, we need to see a progression in ending the climate crisis on another.
The November 2023 United Nations’ Conference of the Parties (COP28), an internationally recognized and respected climate summit, is projected to have the most attendees of any COP to date. New energy transition and carbon cutting goals are set to take hold by the end of the year, and climate finance policies will expand now more than ever before. True progress is being made and nations are mobilizing for tangible climate impact; individual companies must take part.
In the new movement Clean Creatives, over 350 advertising agencies and public relations firms have pledged to use both their platform and reinforced ability to turn away unethical groups to stop fueling the climate crisis.
Public relations firms are instrumental to the oil and gas industry’s greenwashing and brand-building strategies, deflecting responsibility from fossil fuel companies and downplaying the severity of continued emission output. Ending associations with the gas and oil industry, the “largest contributor to climate change” according to UN Secretary-General Antonio Guterres, is the first step of many to accelerate climate activism.
Public relations and marketing professionals are all charged with allowing fossil fuel giants to continue to operate, and it is up to them to say no to those who hinder climate progress. Utilizing the 303 Creative LLC v. Elenis decision is a necessary, positive exertion of expanded First Amendment rights to promote climate activism, and a way to shut out fossil fuel companies resistant to global pro-climate efforts.
