Several months ago, I published several posts here on the VC arguing that the Court should have dismissed Lorie Smith’s challenge to Colorado’s anti-discrimination law for lack of Article III standing. [see here and here].  In response, Prof. Richard Re (UVA) took the opposite position [see here and here]; he wrote:

According to many commentators [e.g., me], 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 [and] the premise underlying this popular criticism is plainly incorrect. … 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. . . . This is a case where the existing rules were followed. Leading cases in the area are unanimous …

This past week I gave the inaugural lecture at Catholic University Law School’s “Sexuality and Gender Discussion Forum” on the question of standing in this case. This presented an opportunity to take a somewhat deeper dive into the issue, 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 standing rules, and likely to wreak considerable havoc in the days ahead. Let me try to explain why.

First, the facts, as summarized in the Supreme Court’s majority opinion (emphases added):

“Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to “celebrate” and “convey” the “details” of their “unique love story.” … The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be “original,” “customized,” and “tailored” creations. The websites will be “expressive in nature,” designed “to communicate a particular message.” Viewers will know, too, “that the websites are [Ms. Smith’s] original artwork,” for the name of the company she owns and operates by herself will be displayed on every one. …

[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 has yet to carry out her plans. She worries that, if she does so, Colorado will force her to express views with which she disagrees. Ms. Smith provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation. But she has never created expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism. Ms. Smith does not wish to do otherwise now, but she worries Colorado has different plans. Specifically, she worries that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.

Although Colorado had not yet attempted to enforce its anti-discrimination statute against Smith’s wedding website business—how could it, given that she didn’t have a wedding website business?—the Court held that she had standing to assert a “pre-enforcement challenge” because there was a “credible threat” that Colorado would make such an attempt in the event that she followed through with her plans.

And this was, in Professor Re’s view, “entirely consistent with settled case law” on which the “leading cases” are “unanimous.”

That is, I continue to believe, incorrect.

The Court has described the “credible threat” doctrine this way:

“We have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. A plaintiff satisfies the injury-in-fact requirement [for standing] where he [sic] alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334 (2014).

Did Lorie Smith have “an intention to engage in a course of conduct affected by a constitutional interest”?  Sure—at least, she says she did.

But it is hardly “consistent with settled law” to hold that her declaration that she “wants” to build a wedding website and had “plans” to do so, standing alone, is sufficient to support a finding of a “credible threat of enforcement.” I have found no other case where the Court found that the “credible threat” standing test was satisfied where there was no evidence that the challenger would in fact engage in the specific course of conduct other than her declaration that she “wanted” to.  The Court has always required additional evidence to support the claim that the challengers will follow through on that “intention” and actually engage in that course of 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 stated its intention to keep doing so.  Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289 (1979)
• The Virginia Booksellers Association had standing to challenge a VA law prohibiting the sale of books “harmful to juveniles” because it was already selling books that were within the statutory prohibition, and stated its intention to keep doing so. Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (1988)
• The Humanitarian Law Project had standing to challenge a federal law that criminalized “knowingly provid[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 it stated its intention to keep doing so.  Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
• The Susan B. Anthony List, a pro-life advocacy group, had standing to challenge an Ohio law criminalizing the making of “a false statement concerning the voting record of a candidate or public official” because (a) it had previously published statements that Representative Steven Driehaus’s vote in favor of the Affordable Care Act was a “vote in favor of tax-funded abortions,” (b) the Ohio Elections Commission had already made the determination that there was probable cause that this statement violated the Ohio statute, and (c) the SBA List stated its intention to make similar statements concerning the voting record of other candidates to public office in the future.  Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334 (2014).
• Antiwar activist James Steffel had standing to challenge a Georgia criminal trespass statute because he had already “twice been warned to stop hand-billing against American involvement in Vietnam on an exterior sidewalk of a shopping center and had been threatened with arrest by police if he failed to do so,” and he had stated his intention to continue his hand-billing activities. Steffel v. Thompson, 415 U.S. 452 (1974).

Etc.

The 303 Creative case represents a substantial expansion of the credible threat doctrine to allow pre-enforcement challenges to government enactments based on nothing more than a stated desire to engage in the conduct covered by the enactment.  This is going to 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 standing to challenge the FAA’s jurisdiction over the building of airports, we’re in for a very rough ride.

I’ll say it again: This is a 100% made-up case, a Con Law I exam hypothetical masquerading as an actual, concrete dispute.

Incidentally, it is surely noteworthy that even today, five years after she filed her initial complaint, Lorie Smith has still not unveiled her wedding website. See the banner on the 303 Creative website: “Coming Soon! Custom Wedding Websites.” If the Court, and those who argue that this was an actual controversy with actual facts, are not at least a little embarrassed by this, they should be.

What About Those Stipulations?

To decide a made-up case, the Court must, of course, make up some facts. The parties had stipulated to certain facts, and the Court adopted those:

• Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “will gladly create custom graphics and websites” for clients of any sexual orientation.
• She will not produce content that “contradicts biblical truth” regardless of who orders it. Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction.
• All of the graphic and website design services Ms. Smith provides are “expressive.”
• The websites and graphics Ms. Smith designs are “original, customized” creations that “contribut[e] to the overall messages” her business conveys “through the websites” it creates.
• Just like the other services she provides, the wedding websites Ms. Smith plans to create “will be expressive in nature.”
• Those wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage.
• Ms. Smith will create these websites to communicate ideas—namely, to “celebrate and promote the couple’s wedding and unique love story” and to “celebrat[e] and promot[e]” what Ms. Smith understands to be a true marriage.

The conclusion that “flows directly from the parties’ stipulations” is that “the wedding websites Ms. Smith seeks to create qualify as ‘pure speech’ under this Court’s precedents” and are, therefore, protected by the First Amendment.

No kidding!  The italicized stipulations are not “facts,” they are legal conclusions—that her websites are her “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 knew that already?! If we assume that, she wins. We already knew that, too.

The hard question in this case, and in cases like it posing a conflict between anti-discrimination law and the First Amendment, is this: Is the challenger engaging in “an ordinary commercial transaction” that does not implicate First Amendment protections, or in expressive/communicative/creative “speech” that does. The decision in this case tells us precisely nothing we didn’t know before about where and how that line is to be drawn. It stands for the very unremarkable 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 of the reasons we have standing rules—to avoid wasting everyone’s time on advisory opinions that tell us little or nothing about what the Court will do when presented with an actual case with actual facts.