The Volokh Conspiracy

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Free Speech

Did Factual Revelations Undermine 303 Creative?

Recent reporting doesn't materially undermine, and could even strengthen, the case for standing.


This series of posts 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.

One of the most salient indictments of 303 Creative v. Elenis concerned allegedly false facts that supposedly undergirded the case. This post turns to those factual issues. Here's an excerpt from my paper:

Shortly after initiating suit, the designer [plaintiff Lorie Smith] supposedly received a terse request for web services in connection with a same-sex wedding. This asserted fact featured in the designer's briefing throughout the case. Why? Because it is very hard to view such requests as speculative if one has already taken place. Thus, this supposed fact tended to buttress the designer's claim of standing. Yet the district court doubted the significance of the asserted fact, and neither the Court of Appeals nor the Supreme Court explicitly mentioned it at all.

On the eve of the Supreme Court's decision, Melissa Gira Grant of The New Republic broke the news that she had contacted the individual who had supposedly made the request, and he denied doing so. This report was later confirmed. By then, the Supreme Court had issued its decision without commenting on the matter. And Grant's story had set off a firestorm.

Some reactions to Grant's story reveal an assumption that the attorneys in 303 Creative fabricated the apparently bogus request to help their case. Other commentators, however, have expressed doubt on that point, at least until specific proof comes to light. Clearly, any attempt to fabricate evidence—particularly by an attorney—would constitute unethical behavior.

For present purposes, the most relevant issue is whether this asserted factual revelation materially changes the standing analysis. For a skeptic of pre-enforcement review, the answer might be yes. Only an actual request for services, the skeptic might think, could possibly justify federal court review.

Yet we have already seen that, under governing case law, the case for standing was quite strong. And, in setting out that view, I didn't so much as mention that the designer had received a request for services. In that respect, I have followed in the footsteps of every appellate judge who found standing in the case.

The second alleged misrepresentation also comes from Grant, who has now earned a reputation for getting legal scoops. Grant's newer article was admirably careful about the import of her discoveries. For instance, Grant noted about her own earlier story debunking the services request: "the existence of the request was likely not going to be decisive in the ultimate outcome of the case."

However, Grant argued that her new discovery "strikes closer to the heart of the matter." As she explained: "In 2015, a web designer named Lorie Smith featured [a] wedding website in her portfolio of recent work …. But … [t]he page detailing her role in the wedding website's creation was removed some time before she filed a legal challenge [in 2016]." Grant therefore argued: "It is now clear that Smith [the designer] had, in fact, built a wedding website and advertised that work on her own website without, it appears, any of the adverse consequences she and her attorneys said could follow." Yet what the designer apparently did before wasn't the same as what she said she wanted to do going forward, such as posting a notice of the type that underlay her Communication Clause claim.

At any rate, Grant's piece candidly acknowledged: "in fact, if ADF [who represented the designer] had shared what had happened with Smith's first wedding website, it may have strengthened her case." Why? Because "ADF is now saying that Smith took the wedding website down because she feared the law, which could be a stronger argument for her speech being chilled." Grant's piece thus recognized that this allegedly buried fact could have helped the designer's case for standing. Yet it is unlikely that a plaintiff would illicitly conceal something that is helpful to her case. And it would be more than a bit strange to criticize the designer for not telling us that her case was even stronger than we'd thought.

But perhaps recent stories have uncovered only the tip of an iceberg. Much of the designer's case could be fabricated or exaggerated, even if those potential fabrications haven't yet come to light. Adding to that concern, some of the factual premises of other cases handled by ADF have also been questioned. Given what we currently know, however, another plausible view is that the litigants and courts in 303 Creative didn't explore the foregoing factual issues in detail simply because they didn't matter very much, if at all. The parties entered joint stipulations on the key facts, without expending limited time on side issues.

And the judicial system was entitled to rely on those stipulations. As Justice Ginsburg emphasized for the Court in Christian Legal Society v. Martinez, a 5–4 liberal victory, "Factual stipulations are binding and conclusive."

We have now seen that both legal and factual criticisms of 303 Creative are uncompelling, at least as a matter of existing doctrine. In my next post, I'll discuss why those criticisms nonetheless proved so popular.