Several months ago, I published several posts here on the VC arguing that the Court should dismiss Lorie Smith’s challenge to Colorado’s anti-discrimination law for lack of Article III validity. [see here and here]. In response, Prof. Richard Re (UVA) took the opposite position [see here and here]; she wrote:
According to many commentators [e.g., me], the Court decided what was actually a “false” or “made up” case brought by someone who claimed to be entitled simply because he “cares.” On a doctrinal level these criticisms are unfounded [and] the premise underlying this popular criticism is clearly flawed. … The Court devoted several pages to approvingly recount the standing analysis issued by the appeals court. And that discussion applied a “credible threat” standard, consistent with established case law. . . . This is a case where existing rules were followed. The most important cases in the area are unanimous…
Last week I gave the inaugural lecture at Catholic University Law School’s “Sexuality and Gender Discussion Forum” on the issue of standing in this case. This provided an opportunity to delve deeper into the matter, and I came away more convinced than ever that the Court’s decision was deeply ill-advised, inconsistent with prior precedent, a substantial expansion of existing rules, and would likely result in significant chaos in the days to come. I would like to try to explain why.
First, the facts, as summarized in the Supreme Court majority opinion (emphasis mine):
“Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing consulting, and social media management services. Recently, he decided to do it expand its offerings include services for couples looking for websites for their weddings. How you imagine it, its websites will provide couples with text, graphic art and video to “celebrate” and “convey” the “details” of their “unique love story.” …The websites we will discuss how the couple met, explains their backgrounds, families and future plans, and provides insight into their upcoming wedding. All text and graphics on these websites will be “original”, “personalised” and “tailor-made” creations. The websites will be “of an expressive nature”, designed “to communicate a particular message.“The spectators will know, also “which websites are [Ms. Smith’s] original works of art”, on each of them will be displayed the name of the company that owns and manages it alone….
[Alert readers may notice that some of these so-called “facts”—that her text and graphics will be “original,” and “expressive in nature,” and “communicative”—look a lot more like legal conclusions than facts. See below.]
The Court continued:
“[S]He he has yet to realize his plans. She worries that if she does, Colorado will force her to express opinions with which she disagrees. Ms. Smith provides her website and graphics services to clients regardless of their race, creed, gender or sexual orientation. But she has never created expressions that contradict her opinions of her for anyone, whether that means creating works that encourage violence, belittle another person or challenge her religious beliefs, for example, promoting atheism. Mrs. Smith doesn’t want to do otherwise now, but she worries Colorado has different plans. In particular, she worries that if she entered the marriage website business, the state would force her to convey messages inconsistent with her belief that marriage should be reserved for unions between a man and a woman.
Although Colorado had not yet attempted to enforce its anti-discrimination statute against Smith’s wedding website business, how could it do so, given that? he didn’t have it a wedding website business? – the Court found that she had the right to make a “pre-enforcement challenge” because there was a “credible threat” that Colorado would make such an attempt if it followed through with its plans.
And this, in Professor Re’s opinion, is “entirely consistent with consolidated jurisprudence” on which the “main causes” are “unanimous”.
I mean, I still believe it, it’s not correct.
The Court described the “credible threat” doctrine this way:
“We have permitted pre-application review in circumstances that make the threatened enforcement sufficiently imminent. The plaintiff satisfies the de facto harm requirement [for standing] where is he [sic] alleges an intention to engage in conduct allegedly infringed by a constitutional interest, but prohibited by law, and there is a credible threat of prosecution under it.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014).
Did Lorie Smith “intend to engage in conduct influenced by a constitutional interest”? Sure, at least she says she did.
But it is hardly “consistent with established case law” to hold that his statement that he “wants” to build a wedding website and has “plans” to do so, alone, is sufficient to support a finding of a “credible threat of enforcement of the law” .” I found no other case in which the Court found that the “credible threat” criterion was met where it existed no evidence that the challenger would actually engage in the specific conduct other than his statement that he “wanted to”.. The Court has Always further evidence needed to support the claim that challengers will follow through on that “intention” e actually engage in that conduct. For example:
- The United Farm Workers Union had standing to challenge an Arizona anti-boycott law because it had engaged in numerous boycotts in the past and declared its intent to continue doing so. Babbitt v. United Farm Workers Nat. Union, 442US 289 (1979)
- The Virginia Booksellers Association had standing to challenge a VA law banning the sale of books “harmful to minors” because it was already selling books that fell within the legal ban, and declared its intention to continue to do so. Virginia v. American Booksellers Ass’n, Inc., 484 US 383 (1988)
- The Humanitarian Law Project had standing to challenge a federal law that criminalized “knowingly supplied.”[ing] material support to a foreign terrorist organization” because it had provided funds to groups designated as terrorist organizations prior to the law’s enactment and declared its intention to continue to do so. Holder v. Humanitarian Law Project, 561 US 1 (2010).
- The Susan B. Anthony List, a pro-life advocacy group, had the right to challenge an Ohio law that criminalizes the production of “false statements regarding the voting records of a candidate or public official” because ( (a) had previously published statements that Congressman Steven Driehaus’s vote for the Affordable Care Act was a “vote for tax-funded abortions,” (b) the Ohio Elections Commission had already determined that there was a likely cause that this statement violated Ohio statute, and (c) the SBA List has expressed its intent to make similar statements regarding the election records of other candidates for public office in the future. Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334 (2014).
- Peace activist James Steffel had the right to challenge a Georgia trespassing law because he had already “been warned twice to stop hand-billing American involvement in Vietnam on a sidewalk outside a shopping mall and had been threatened of arrest by the police if he failed.” do so,” and he said he wanted to continue his manual invoicing business. Steffel vs. Thompson415US 452 (1974).
Etc.
The 303 Creative case represents a substantial expansion of the credible threat doctrine to allow pre-enforcement challenges to government regulations based on nothing more than a stated desire to engage in the conduct contemplated by the law. This will come back to haunt us. I want to build an airport in my backyard, but if just saying “I want to build an airport in my backyard” is enough to give me the ability to challenge the FAA’s jurisdiction over airport construction, we’re going to be in for a very tough walk.
I repeat: this is a 100% made-up case, a hypothetical I-fraud law exam masquerading as a real, concrete controversy.
Incidentally, it is certainly noteworthy that even today, five years after filing the initial complaint, Lorie Smith did so Still he has not revealed his wedding website. Check out the banner on 303 Creative’s website: “Coming soon! Custom wedding websites.” If the Court, and those who argue that this was a real dispute with real facts, weren’t at least a little embarrassed by this, they should be.
What about these provisions?
To decide a made-up case, the Court must, of course, make up some facts. The parties had established certain facts and the Court adopted these:
- Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation and gender” and will “willingly create custom graphics and websites” for clients of any sexual orientation.
- It will not produce content that “contradicts biblical truth” regardless of who orders it. His belief that marriage is a union between a man and a woman is a sincerely held religious belief.
- All graphics and website design services provided by Ms. Smith are “expressive.”
- The websites and graphics designed by Ms. Smith are “original and custom” creations that “contribute[e] to the general messages” transmitted by its activity “through the websites” he creates.
- Just like the other services she provides, the wedding websites Ms Smith plans to create “will be expressive in nature”.
- These wedding websites will be “personalized and tailored” through close collaboration with individual couples, and will “express Ms. Smith and 303 Creative’s message that celebrates and promotes” her vision of marriage.
- Ms. Smith will create these websites to communicate ideas—i.e., “celebrate and promote the couple’s marriage and unique love story” and “celebrat[e] and promote[e]” what Mrs. Smith believes to be a real marriage.
The conclusion that “flows directly from the parties’ stipulations” is that “the nuptial websites that Ms. Smith seeks to create qualify as ‘pure speech’ under this Court’s precedents” and are, therefore, protected by the First Amendment.
I am not joking! The clauses in italics are not “facts,” they are legal conclusions: that its websites are “original,” “creative,” and “expressive in nature,” and that they will “communicate ideas.” Original creative expression that communicates ideas is protected by the First Amendment – surely we already knew that?! If we hire him, she wins. We already knew this too.
The difficult question in this case, and in cases like this that bring anti-discrimination law into conflict with the First Amendment, is this: Is the challenger engaged in “an ordinary commercial transaction” that does not involve First Amendment protections, or in expressive activities? / communicative / creative “speech” that he makes. The decision in this case tells us this precisely Nothing before we didn’t know where and how to draw that line. It represents the utterly meaningless proposition that “if we assume that the challenger’s actions are expressive/communicative/expressive ‘speech,’ they are protected by the First Amendment.” As my kids would say: Duh.
That’s one reason we have standing rules: to avoid wasting everyone’s time with advisory opinions that tell us little or nothing about what the Court will do when a real case with real facts is presented.