The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This series of posts, written by Prof. Richard Re (Virginia), is based on his draft article, "Does the Discourse on 303 Creative Portend a Standing Realignment," which is forthcoming in the Notre Dame Law Review Reflection.
In my first post, I critically discussed some popular objections to 303 Creative v. Elenis and noted that case law established a "credible threat" test for standing. Now, I'd like to explore the issue of standing more extensively. Was the credible threat test satisfied in 303 Creative? Here's an edited excerpt from my paper:
Drawing on the court of appeals decision below … the Court adduced three reasons why the threat facing the designer [plaintiff Lorie Smith] was credible. First, "Colorado has a history of past enforcement against nearly identical conduct." This factor is very powerful. If someone has done something and been enforced against, that would seem to make it credible that a new person would suffer enforcement for similar conduct.
Second, "anyone in the State may file a complaint against Ms. Smith and initiate 'a potentially burdensome administrative hearing' process." So, even if most or nearly all people in Colorado would decline to initiate enforcement against the designer, it would only take one person to initiate proceedings and generate alleged censorship. This too seems like a significant point in favor of standing.
Third, "Colorado [has] decline[d] to disavow future enforcement proceedings" against the plaintiff. With the case pending at the Court, the State was obviously well aware of what the plaintiff had in mind and could have put everyone at ease by disavowing any interest in enforcement – as sometimes does happen as late as oral argument. Yet Colorado declined to do so. Instead, the State stayed conspicuously quiet about whether it would enforce. Given the circumstances, that silence speaks loudly. Who wouldn't view the threat as very credible indeed?
The Court then wrapped up: "Before us, no party challenges these conclusions." The dissent, too, declined to take any issue with this persuasive and largely undisputed analysis.
If any justice or party before the Court had managed to cast doubt on these conclusions, there was even more that the majority could have said. As the dissent pointed out at length, the designer wanted to issue a notice on her website that she would not provide her services in connection with same-sex weddings. In other words, the designer wanted to advertise what many, many people—including the dissenters—would view as a policy of express, invidious discrimination. Isn't it not just credible or likely, but extremely likely that the State of Colorado would take the same view? Wouldn't many people on the left be outraged if the State took no action in the face of such a declaration?
And it turns outs that the designer's right to post the notice depended in part on her right to turn away work relating to same-sex marriage. Whether you have a right to advertise a certain activity often depends on whether you can legally perform the activity. For example, First Amendment doctrine cares whether an advertisement regards unlawful discrimination or a restriction in restraint of trade, as opposed to voting and politics. That point carries over to 303 Creative. As the majority put it, "Ms. Smith's Communication Clause challenge" (that is, her claim to post the notice) "hinges on her Accommodation Clause challenge" (that is, her claim to turn away work regarding same-sex marriages). Thus, the designer's standing to challenge the notice effectively entitled her to adjudication of whether she had a right to turn away work expressing support for same-sex marriage.
Some sophisticated critics of 303 Creative have argued that the decision reflects a kind of double standard or inconsistency. Liberal claimants challenging things like Texas's restrictive abortion laws end up not being heard, whereas conservative claimants do. In various forms, this kind of criticism is very old and quite plausible. Justices on both the left and the right sometimes find standing where doing so seems convenient in light of their merits views.
In light of what I have argued, however, this kind of allegation is inapt as applied to 303 Creative. This is a case where the existing rules were followed. Leading cases in the area are unanimous. And no appellate judge—whether of the right or the left—disputed standing in 303 Creative itself. So this critique alone cannot explain, much less justify, the intense jurisdictional criticism leveled in this case.
Other critics have focused on SBA List v. Driehaus, arguing that it's distinguishable from 303 Creative. SBA List involved a group that spoke out against an electoral candidate. Under state law, any private person could initiate enforcement actions against false public speech, and the criticized candidate did so. Once the candidate's election ended, the enforcement action was dismissed as moot, but the group (SBA List) sought prospective relief against future enforcement actions in connection with future speech. The Supreme Court unanimously concluded that SBA List had standing, and for reasons that should sound familiar. The group faced a "credible threat" of future enforcement actions that could be initiated by any number of persons in response to the group's future speech. On its face, then, SBA List seems to support standing in 303 Creative.
Critics have pointed out that the plaintiff in SBA List had already been the target of an enforcement action, whereas the designer in 303 Creative hadn't been. Under precedents like City of Los Angeles v. Lyons, however, personal enforcement history in itself isn't relevant to the availability of prospective relief. At most, that kind of personal history is one potential way of establishing a credible threat in the future. And that is precisely why SBA List pointed to it: what the plaintiff had to show was a "history of past enforcement," full stop. It just so happened that the plaintiff in SBA List made that key showing by pointing to its own experiences. While the designer in 303 Creative didn't have that particular type of evidence of a credible threat, she had other evidence, as discussed above. So this distinction, while true, doesn't make a material difference.
I don't want to overstate the foregoing points. A good-faith judge could read SBA List narrowly, or otherwise construe case law to avoid standing in 303 Creative. Even so, a good-faith judge could certainly decline to distinguish or narrow the relevant precedents. And agreement on that is enough to let the Court off the hook for most of the jurisdictional criticism it has received.
But legal arguments about standing formed only part of the case against jurisdiction in 303 Creative. Factual concerns also played an important part—as discussed in my next post.