From Prof. Richard Re: The Remarkable Discourse on 303 Creative
September 5, 2023 | Tags: free speech, REASON
[This is a guest post by Prof. Richard Re (Virginia); because of a technical glitch, I had to originally post it under my byline.]
Perhaps the most surprising feature of the last Supreme Court term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a "fake" or "made up" case brought by someone who asserted standing merely because "she worries." As a doctrinal matter, these criticisms are unfounded.
But what makes this episode interesting is that the criticisms came from the legal left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal justices become jurisdictionally hawkish.
In the past, justices who found themselves out of power have often tried to tighten justiciability principles. So, now that the Court has shifted decidedly rightward, it makes some sense for there to be an ideological reversal on federal court jurisdiction.
Or so I argue in a new draft paper, "Does the Discourse on 303 Creative Portend a Standing Realignment?", forthcoming in the Notre Dame Law Review Reflection.
Eugene has kindly invited me to present portions of my paper as a series of blog posts. The first few paragraphs of this post are drawn from the paper's abstract. Future posts will address standing, factual disputes, and, ultimately, the broader issue of realignment.
In the rest of this post, I'll like to reproduce my basic take on 303 Creative and respond to some salient standing-based objections. Let's start with the case's facts:
A web designer in Colorado named Lorie Smith wanted to offer web services related to weddings. But she didn't want to create websites supportive of same-sex marriages, which she opposes. Knowing that Colorado had viewed similar stances as unlawful discrimination on the basis of sexual orientation, Smith, through a corporation and with the aid of conservative group Alliance Defending Freedom, sued the State.
Many legal commentators have argued—via social media, podcasts, television, and press articles—that there was no standing in 303 Creative. This wave of critical commentary washed over the public in early July. As a sitting US Senator then put it on Twitter: "I have no law degree and even I know the Court cannot adjudicate a hypothetical. This is an embarrassment of a new dimension."
According to some of these critics, the Court held that the designer had standing to bring suit simply because "she worries" about potential liability. A federal judge has even asserted as much in a judicial order, echoing left talking points on social media. This claim is incendiary because mere worries are a patently inadequate basis for standing under extant case law.
However, the premise underlying this popular criticism is plainly incorrect. True, the Court did use the phrase "she worries," but it did so only to describe the case's factual background. Later, the Court spent several pages approvingly recounting the standing analysis issued by the court of appeals. And that discussion applied a "credible threat" standard, consistent with settled case law.
For example, the Court stated: "To secure relief, Ms. Smith first had to establish her standing to sue. That required her to show 'a credible threat' existed that Colorado would, in fact, seek to compel speech from her that she did not wish to produce."
And later: "Ms. Smith alleged that, if she enters the wedding website business to celebrate marriages she does endorse, she faces a credible threat that Colorado will seek to use [the Act] to compel her to create websites celebrating marriages she does not endorse." …
Going further, some commentators appear to suggest that plaintiffs shouldn't be able to bring suit until they have violated the law, thereby exposing themselves to a risk of punishment. This perspective is visible, for example, in the many critics who emphasized that there had been no denial of services in 303 Creative, much less an actual enforcement action against the designer.
Yet that view is contrary to roughly a century of settled case law. And that case law has enjoyed broad support. The idea that opposition to pre-enforcement review was at least briefly in currency on the left is among the most surprising and interesting features of the popular reaction to this case.
To give some sense of why the "credible threat" standard has so much appeal—and why any left opposition to pre-enforcement review is so startling—imagine a different and starker scenario. Let's say that someone wants to bring a soapbox to the town square and rail against the president. But on their way there, they see someone else get on a soapbox at roughly the same place, start criticizing the president, and get dragged away by police for violating a law barring public protest. Does that person have to endure arrest or worse to bring a federal court challenge? Or can the person instead establish these events and get a protective order or injunction, ensuring that they will be able to speak in accord with their constitutional rights?
Before 303 Creative, it appeared widely agreed in U.S. legal culture that the imagined person could sue at once. Yes, the suit would be pre-enforcement, and the plaintiff wouldn't yet have spoken in any way, much less have run afoul of the police. Maybe the new prospective speaker wouldn't actually be bothered at all by the police – the future, after all, is necessarily somewhat speculative. Yet there would be a credible threat of enforcement, based on the government's recent treatment of a similar individual. That is why standing would be proper, under current case law. If we took seriously some of the more extravagant objections concerning 303 Creative, however, that highly intuitive and longstanding conclusion would be called into question.
I hope this post convinces you that the discourse on 303 Creative is important and at least partly misguided. My next post will explore whether the "credible threat" standard for standing had been met.
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