Courthouse Steps Oral Argument: 303 Creative v. Elenis

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Chayila Kleist:  Hello, and welcome to The Federalist Society's webinar call. Today, December 5th, 2022, we host a post oral argument courthouse steps on 303 Creative v. Elenis which was argued earlier today before the Court. My name is Chayila Kleist, and I'm Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call as The Federalist Society takes no position on any particular legal or public policy issues.

 

In the interest of time, I'll keep our introductions brief, but if you'd like to know more about any of our speakers, you can access their full bios at fedsoc.org. Today, we are fortunate to have with us as our moderator Professor Michael Dimino who's a professor of law at Widener University Commonwealth Law School where he teaches courses related to constitutional law, election law, federal court, statutory interpretation, and criminal law. He's authored a case book on election law, has written widely especially on the election of judges, and as of earlier this year, he was appointed to serve on the Supreme Court of Pennsylvania's Appellate Court Procedural Rules Committee. I'll leave it to him to introduce the rest of our panel.

 

One last thing. Throughout the panel, if you have any questions, please submit them through the question-and-answer feature so that our speakers will have access to them for when we get to that portion of today's webinar. With that, thank you all for being with us today. Professor Dimino, the floor is yours.

 

Prof. Michael Dimino:  Thank you very much. Thank you to The Federalist Society for hosting this event. Thank you to our wonderful panelists. I have the great honor not only of being today's moderator but also of being the chair of The Federalist Society's Free Speech and Election Law Practice Group Executive Committee. It is that executive committee and the practice group as a whole that is primarily sponsoring this event which is about 303 Creative v. Elenis, a case that was argued before the Supreme Court of the United States this morning and early this afternoon.

 

The case is a kind of reprise of Masterpiece Cakeshop which many of you will remember from a few years ago. Colorado has an antidiscrimination law which prohibits places of public accommodation, including some businesses, from discriminating on various grounds including sexual orientation. 303 Creative is a web design firm that, among other things, produces websites relating to the promotion of wedding ceremonies. 303 Creative has asked for declaratory judgement that would declare the Colorado statute unconstitutional as applied to 303 Creative because 303 Creative is worried about the possibility that the statute might be used to require 303 Creative to create a website promoting a same sex marriage. The woman who runs 303 Creative is opposed to same sex marriage on religious grounds and believes that it is her First Amendment right to refuse to use her creative talents to advertise a wedding that she believes would be invalid or contrary to her beliefs.

Today, we have two wonderful panelists to discuss this issue. Each of them will give an opening statement and then we will have a back and forth and time for questions. The first speaker is Professor Andrew Koppelman who is the John Paul Stevens Professor of Law. He's the professor -- he requires that I state -- by courtesy of political science and the philosophy department affiliated faculty at Northwestern University. He received the Walder Hart award for research excellence from Northwestern, the Hart-Dworkin award in legal philosophy from the Association of American Law Schools, and the Edward S. Corwin Prize from the American Political Science Association. He has written more than one hundred scholarly articles and eight books, most recently "Burning Down the House: How Libertarian Philosophy was Corrupted by Delusion and Greed." And you can find his recent work at AndrewKoppelman.com.

 

Our second speaker, Casey Mattox, is a member of the Free Speech and Election Law Practice Group Executive Committee with me. He is also the Vice President for Legal and Judicial Strategy at Americans for Prosperity and a Senior Fellow for Free Speech at Stand Together Trust where he advocates for a judiciary that defends the rule of law and protects individual liberty especially the freedoms of speech and assembly. For over 15 years before joining STT and AFP, Casey's legal career focused on defending the First Amendment rights of students, faculty, families, healthcare workers, and religious organizations representing parties in 35 states and all levels including at the Supreme Court. He has also testified frequently before congressional and state legislative committees. He has a JD from Boston College and a BA in government and history from UVA. And he clerked for Justice Champ Lyons of the Alabama Supreme Court. You can find him on Twitter at @CaseyMattox_.

 

Professor Koppelman, whenever you're ready, you may begin. Thank you very much for your participation today.

 

Prof. Andrew Koppelman:  All right. So you know the basic facts about Lorie Smith. She wants to expand her business to include custom designed wedding websites. There's some ambiguity about what custom designed means, whether it means bespoke from scratch or whether it means just plug and play where she inserts particular details. That might or might not matter based on today's oral argument. She wants to be able to say on her own promotional website that she doesn't design sites for same sex weddings, and Colorado law bans businesses that are open to the public from discriminating against gay people or announcing their intent to do so.

 

In terms of compelled speech doctrine, her case has some plausibility. It's settled First Amendment law that you can't be compelled to say what you don't believe. The Supreme Court said that in 1943 in the flag salute case, and so it is possible to decide the case on the ground that she is being required personally to craft a message with which she disagrees. There was an earlier case in another circuit in which a company that made custom videos was told by the state that if they enter the wedding video business, their videos must depict same and opposite sex weddings in an equally positive light. And that really looks like the state compelling someone to mouth a viewpoint in a way that was even more intrusive and demoralizing than in the flag salute case because Smith, in this case, won't just have to recite prescribed words but exercise her own judgement creating a message on pain of being deemed discriminatory if her work product is judged insufficiently enthusiastic.

 

But that argument isn't conclusive because equally intrusive judgements are sometimes made in breach of contract cases that you -- what you did in a contract case under performance was deliberately of lower performance and that can be deemed per textual in order to force a lower price. Courts scrutinize the quality of performance and contracts all the time. Now, the key question in this case and what gives me pause about the compelled speech argument is the claim that she is an artist and artist -- this is a word in the question granted by the Supreme Court. The Court is specifically hearing the question as the Court articulated it whether applying a public accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment. Well, who is an artist and for what purposes?

 

And the difficulty here, I think, is made clear by the earlier decision that the Court avoided involving a cake baker. Ordinarily, food preparation is not regarded as artistic production, but this particular baker took unusual care in crafting his cakes and so he claimed, and a number of the justices on the present Court agreed, that that made him artistic. So I think the really puzzling question presented by this case is, what counts as an artistic production? And the danger in this case is that the Court is either going to leave deep uncertainty about which businesses are sufficiently artistic to warrant exemptions from antidiscrimination law. Is a flower shop expressive? Is a bakery expressive? It's really uncertain.

 

There is a proposal that's been made and was noted in oral argument by Professors Eugene Volokh and Dale Carpenter. They think that expression should be protected if it falls within a generally expressive medium, a medium that has historically and traditionally been recognized as expressive. So they are supporting the web designer in this case because they think that website design is expressive, writing is expressive, photography is expressive, but they were on the other side of the cake case. Now, the danger in this case, I think, is that the right wing of the Court is really more concerned about protecting conservative Christians than it is about speech. An awful lot of them really wanted to rule in favor of the baker in the Masterpiece Cakeshop case but this divides the world in a different way because there are lots of religious vendors who object to facilitating same sex weddings. Some of them don't work in expressive media. Florists and bakers -- and the moral reality is that all of them, whether they are expressive or not, conscientiously object to participating in a ceremony that they don't regard as a real wedding and free speech law treats them differently.

 

If by focusing on Masterpiece Cakeshop because there was a free speech argument that was made in that case in a separate opinion by Justice Thomas joined by Justice Gorsuch, Thomas argued that the baking of wedding cakes is inherently expressive. A wedding cake communicates a basic wedding message of celebration of a wedding and by this logic, the baker had a right to refuse to sell a premade wedding cake that he already had on his shelf. And similarly here, even if the web designer doesn't use any expressive skills at all, just has a template and plugs in the names of the parties, that is going to have expressive significance. And it's true that these actions have some communicative significance but so does almost everything that human beings do. The reason why silent movies tell stories is because you can understand just by watching people's behavior what it is that they are expressing.

 

And the Court rejected the view that any time you engaged in an action that tends to express an idea, you are engaging in speech. If baking is speech because the baker considers himself an artist, then almost everything is speech, and the First Amendment creates a presumption of anarchy. And it's been settled for more than half a century that government can regulate conduct that communicates if its interest is unrelated to the suppression of the message and the impact on the communication is no more than is necessary to the government's purpose. And discrimination laws easily satisfy those requirements, and so if you rely on that doctrine, then it's pretty clear that Colorado ought to win.

 

So the puzzle in this case is whether the Court -- I think that the Court is inclined to rule in favor of 303 Creative. The challenge in this case is, can they rule in favor of 303 Creative in a way that doesn't unleash chaos either by having a category of artistic speech whose boundaries are deeply uncertain. Maybe if you take the Volokh-Carpenter line, you'll be able to develop them over time, but it does create enormous uncertainty in antidiscrimination law. Or if we are going to talk about any conduct that -- and even if you adopt that perspective, then it licenses quite a lot of discrimination.

 

One hypothetical that came up in the oral argument is, you imagine a photographer who says, "I'm going to do traditional Christmas photography from back in the '40s -- It's a Wonderful Life photography. And the way that I interpreted that, the families who posed for such photographs were white. And so I'm only going to photograph white people." Well, it is bespoke artistic production; is that permitted under a free speech argument? Even under the Volokh-Carpenter argument, that seems to be permitted. And then if we expand it to anything that conveys a message, which is what you have to do if you are going to adopt a principle that's going to help the baker, then really all bets are off and it's very hard to tell what is left of antidiscrimination law because generally when people discriminate, they're conveying a message. They don't like the message that they would be sending to the world if they engaged in a nondiscriminatory conduct. So that's the challenge for the Court, and I don't know what they're going to do.

 

Prof. Michael Dimino:  Thank you very much. Very, very interesting and quite helpful remarks. Thank you. Mr. Mattox.

 

Casey Mattox:  Well, I will try not to repeat too many of the facts. I'll add some more, hopefully, and maybe point out some places where I think there are -- some clarification of some facts. But I want to try to spend most of my time on the argument and what I think were some of the most interesting things that kind of developed during the argument -- the questions that the Court was grappling with.

But just to back up a little bit again. Lorie Smith is a graphic artist, website designer, sole owner of 303 Creative. And she had worked for larger companies, decided she wanted to go into business for herself and start creating websites for causes that she believed in. So she doesn't just do wedding websites or she's not proposing, for example, to just do wedding websites. She does veterans, animal welfare causes, church mission organization websites, a lot of different things that are within her interests and aligned with what she believes. She's also a Christian and believes that marriage is between one man and one woman. And her contract for services notes that she reserves the right to only create content consistent with her beliefs, broadly. So not just in this context but more broadly.

 

And so according to -- this case actually comes to the Court via stipulated facts from the trial court. They had originally, about six years ago, moved for preliminary injunction. The district court said, "No. I'm not deciding your preliminary injunction. I want summary judgement. I want you to stipulate to facts." They stipulated to facts and that's what we are working on now at the Supreme Court is largely a set of stipulated facts that were essentially pushed for by the trial court. And here we are, and they are quite interesting in some of the things that are stipulated.

 

So according to the stipulated facts, Lorie decides which commissions to accept based on what the message is not who is requesting it. Colorado stipulated that she works with clients regardless of race, creed, sexual orientation, gender, any of those protected categories, and she's designed graphics and created websites for both religious and nonreligious groups advocating for causes that align with her beliefs regardless of identity. She has LGBT clients that she works with in other contexts. And all of her websites include a statement that it's designed by 303 Creative as any smart business owner would do.

 

Colorado agrees that all of her graphic and website designs are expressive in nature, that designing the website. So this -- at least the beginning question of, is the website design expressive? Colorado had stipulated that, in fact, there is expression here in website design. It involves, first of all, words actually put online but also code that is used to create a website and that that itself is also expressive. Obviously, we know about the Colorado Antidiscrimination Act and the background on it, so I won't go into it too much. One of the things -- there's also a separate publication clause that's at issue here as well that actually I don't  believe came up at all in the argument today.

 

So you have both the Colorado Antidiscrimination Act prohibition on discrimination and services provided, and then Colorado also says, "And you can't publicly state that services will be declined or that an individual's patronage or presence is unwelcome, objectionable, unacceptable, or undesirable because of their status." And that's important because, at least according to the stipulated facts, not only would she not be able to decline services for a same sex website to create a website for a same sex wedding, but also can't post on her website that "I will not create websites for a same sex wedding." So there's a separate, like, a prior restraint essentially in that sense or at least that was part of the argument. That really came up, I don't think, Professor Koppelman may tell me I was dozing off during that part of the argument, but I don't think the publication clause issues themselves actually came up for all of the two and a half hours or whatever it was that the argument was today.

 

So the other thing that was kind of interesting to me, once you got to the Tenth Circuit, one of the things that you would have noted from any of the conversation about this case was really the breadth of the Tenth Circuit's holding. It appeared to be pretty novel, and the Court acknowledged -- the Tenth Circuit acknowledged that this was expression, that strict scrutiny applied because Colorado would be compelling Lorie Smith 303 Creative to engage in expressive activity. But it was that exact -- the fact that it was Lorie Smith's 303 Creative's expression and the uniqueness of that expression that actually caused the Tenth Circuit to say that there was no least restrictive means of the state accomplishing its end prohibiting discrimination here than to compel Lorie Smith and 303 Creative to provide the services for a same sex wedding.

 

I think there were, according to the record, there were about a hundred different entities, individuals, or companies in Denver alone that could design websites for a same sex wedding. And of course, when you're thinking about website design, it could be someone in Chile who's designing a website for your wedding, and it wouldn't make much of a difference to anyone else. So it's probably even a broader market than that. But the Court rejected that and said "No, that's not a least restricted means. The fact that other people might be able to provide these services would not be a -- doesn't change the state's interest here in compelling her," because of what's been referred to as the monopoly of one argument. She has a monopoly over her own services. Only she designs websites like Lorie Smith, therefore the state's interests can only be satisfied if Lorie Smith specifically is required to provide those services. Interestingly, I don't think -- the Court spent very little if any time today and neither side -- I think neither the Colorado nor the attorney for the US spent very much time at all attempting to defend the Tenth Circuit's decision and that theory of the case. Maybe impliedly doing so but without actually getting to defending the Tenth Circuit's decision itself.

 

So a few things that stood out to me or a few more things I'll say that stood out to me from the argument. One, there was this question about ripeness coming into the case because you have a reinforcement First Amendment challenge from, like I said, from six years ago when Lorie Smith brought this case back then, is this ripe? And that really wasn't a major issue in the case, at least as ripeness itself was concerned. And I'll get in a moment here to how that issue really came up, but I don't think there are probably any votes for -- or at least it's not obvious that there are votes for actually deciding that the case is just not ripe, and we need to wait on Colorado to enforce the law against Lorie Smith to move forward. Justice Thomas asked about it first. Kristen Waggoner, I think, addressed the question pointing -- for ADF -- to the stipulations in the Court's case law and reinforcement First Amendment challenges, but it did come up later in the argument.

 

And I think the place where that issue comes up in the case is in basically where Justice Gorsuch is pointing out that -- well, Justice Kagan and Sotomayor are raising the question, but what about a plug and play website, for example? And what would happen if what we were really dealing with was not custom designed websites but simply a website that someone would create that's a template website? I will sell you the template and you produce your own website sort of thing. And so they're raising that question. I think Kristen Waggoner's response to that was to go back to the stipulations and say, "Look, according to the stipulations, all of the websites she creates are custom websites. So it would seem to exclude the plug and play situation within the argument as well."

 

But the relief requested is really beyond that because the relief requested from 303 Creative would ask for a decision that she can't be compelled to perform or to create websites for same sex weddings. And Justice Gorsuch, I think, dealt with that essentially saying "Look, people can ask for whatever they want to ask for and we decide what we want to give them." And so I think that's how that ripeness related question gets dealt with. I think what it probably means is that you don't end up seeing a decision in this case that says as to all disputes that could possibly relate to a same sex wedding that there's a First Amendment right not to provide that content. I think what it probably means is they've pushed that aside and left that for another day and just decided the case based on the stipulations about custom design that was at issue here.

 

I'll say too I think in the Masterpiece Cakeshop case that case also had the -- it was a custom design element. The actual circumstance in which it came up wasn't an off the shelf cake or a predesigned cake. There were requests for custom design but that issue to the extent where there was any unclarity in that question in Masterpiece Cakeshop I think the stipulations hopefully pinpoint that question in this case.

 

So I think the second thing that came up that was a major issue in the argument, whose speech are we really talking about here? A lot of debate on this point. Court spent a lot of time discussing this. Justice Kagan probably most notably pursued that line of inquiry and seemed somewhat concerned, at one point, maybe surprising some people, what would happen if there was -- she was pointing to the idea that, well, most people would understand that this is about the couple's story. It's not about the designer's story and said, what if we had -- or noted that she thought it might be more challenging if you were looking at a website that included a line -- something like "God bless this union" or something like that where it would seem to imply that there was someone outside the couple that was offering commentary on the website.

 

Again, that seems to be fighting the stipulation in my mind a little bit, but it was interesting that she was raising the possibility from Justice Kagan that maybe there actually are circumstances here where the Colorado law, if it was applying in that context, it would have given her pause. She seems to think that that's not necessarily before the Court or at least that the relief requested would go beyond that circumstance. Kristen Waggoner had what I thought was a really great line on this that the Pulitzer goes to the photographer not the subject. It's always great to have those lines at oral arguments that seem to sum up your entire argument in one line. I thought that was really interesting.

 

One of the other key questions, is race different? Court spent so many of the hypotheticals and there were a lot of hypotheticals in this argument. So many of the hypotheticals came back to worries about what might happen if someone made similar arguments but about interracial weddings or other contexts that were more race based. And I think it really highlights two different approaches to these questions from 303 Creative and then from the two government defendants.

 

Kristen Waggoner explained why, in her view, most of the hypotheticals were inapplicable to what they were requesting here. She pointed out that, at one point, it's highly unlikely that someone would serve African Americans -- would be serving African Americans in other contexts but not provide creative services for an interracial marriage, for example. That that's probably not going to be a very frequent occurrence, but she also returned to the idea that the answer to those difficult questions can't be compelling speech. Waggoner's approach grants that it's possible that, in some hypothetical, the First Amendment may protect behavior that's odious, but that doesn’t mean the First Amendment needs to change to adjust to make sure that those things aren't happening.

 

And Olson and Fletcher argued that despite the stipulations, and again, the stipulations on the custom designed and the fact that 303 serviced people regardless of status, they said despite that stipulation, the fact that 303 Creative doesn't do same sex wedding websites is itself status based. So Fletcher, for example, said this most clearly that one can't define their religious objection in a way that discriminates on the basis of a status. So basically, the exclusions of same sex marriage, even by people otherwise providing services to LGBT persons, is necessarily status based. That if you have identified your objection as about same sex weddings, that it doesn’t matter what else you're doing in any other contexts, that itself is a status-based exclusion. That would seem to me to raise some content based -- a test like that would seem to me to become a content-based speech rule.

 

Justice Alito asked at one point "In Obergefell, did the Court say that race and religious views about same sex marriage are the same?" It was obviously an -- it was to Kristen Waggoner, so it was a pretty soft ball question with an obvious answer, no. The Court had said that, as to same sex weddings, that honorable people have different views. And then to General Olson from Colorado, he asked later on, "Would Justice Kennedy have said there were honorable people who were opposed to interracial marriage?" And Mr. Olson said, "No." And it was a bit of an end of the conversation on that particular point.

 

Just how broad can public accommodations laws be? What is the scope of public accommodations laws? Both Colorado and the US seemed to throw political belief under the bus. That came up several times. ADF has pointed out in its briefing and in below that an increasing number of jurisdictions prohibit political discrimination and that the implications of public accommodations law and its interactions with the First Amendment is going to have to apply in those circumstances. Colorado and the US seem to basically say that adding political beliefs is not something that is historical and should be looked at differently than the categories that are presently there which I thought was an interesting step. It would leave you with the situation where someone's religious objection would receive lesser protection potentially than someone's political objection, for example. The political objection would be protected over religious objection which is also an interesting First Amendment question.

 

A lot of discussion about FAIR v. Rumsfeld. That was the main case that General Fletcher, Deputy SG, relied upon most interestingly took it straight to the chief justice who had written FAIR v Rumsfeld and was pushing the chief justice on the application of that case. That's a case where the federal government was trying to compel law schools to permit military recruiters on campus. And the objection there was the law schools objected to having military recruiters because it was a time when the don't ask, don't tell policy was still in play. And in FAIR, the Court had said that simply the availability of open rooms, leaving the rooms available, was not itself expressive activity. That wouldn't communicate any message. 

 

But then there was a lot of discussion about the fact that there were other pieces of that where, for example, the law schools would email students and let them know this is where the military recruiters will be and that kind of thing which, of course, gets you right back to the question, well what if it's just a wedding website that says this couple is getting married, this is the time and date, and this is where they're registered? That bare bones website. Then all you're really doing is just telling people time and date like the military recruiters in that circumstance. But again, I think that fights against the stipulations in this case that are around custom design of celebratory websites not the plug and play examples.

 

And then I'll give one last point. I had written a piece before this argument about the three potentially big nondiscrimination laws that could come before the Court this year in very different contexts. One is this Colorado nondiscrimination law. The other two are Texas and Florida which have employed nondiscrimination laws but also against people within the online sphere but in a very different context. And Texas and Florida had created laws, for example, that prohibit social media platforms from discriminating on the basis of political beliefs online. And there were a couple of interesting points I think, and I wrote a piece on this at RealClear that was up this past week. I think there were some interesting points for that possibility.

 

If I were social media platforms watching this case, I would at least be somewhat concerned about some of what I heard today. At one point, General Fletcher indicated that it would violate the Colorado Antidiscrimination Act for a -- or actually I'm sorry -- this was General Olson -- it would violate the CADA for a website hosting service to decline to host sites created by 303 Creative because of her religious beliefs which frankly sounds not entirely unlike the arguments being made by Texas and Florida in support of their own antidiscrimination laws against the social media platforms.

 

General Fletcher, at one point, in response to a hypothetical dealing with online dating services, said, "There isn't the first amendment interest in the action of such a service to connect to people." What he's talking about there is an algorithm. That there's not a First Amendment interest in essentially a social media platform connecting to people via an algorithm. That sounds a lot like the Taamneh and Google cases that will actually be heard by the Supreme Court later this year and is a major question. To what extent do these online platforms actually have a First Amendment interest in their speech? And does that speech include things like the algorithms that they have created to try to promote content or connect content to people that they think will want to hear that content?

 

And then finally, at one point, I think General Olson said that publishing houses, if they were a public accommodation, would also lose under their argument. And Justice Kavanaugh gave him another chance and said, "Are you sure about that?" And he backtracked and said, "Well, I don't think that publishing houses would actually be public accommodations under this law." But I think it really highlighted the fact that the way the Court decides this case will not just impact a small group of Jack Phillips and other Christian wedding vendors. There are going to be implications for not just public accommodations law as we typically think about them but for a growing number of ways the government is looking to regulate speech or speech adjacent activity.

 

Prof. Michael Dimino:  All right. Thank you very much. Before we get to any of my questions or any of your questions, Professor Koppelman and Mr. Mattox, if you have any discussion questions for each other, questions about each other's statements or just other points you want to raise, I'll give you this opportunity right now.

 

Prof. Andrew Koppelman:  So I guess I want to figure out the significance of the stipulation that the web design is expressive in nature which seems to point to something narrower than the relief requested. And Gorsuch is right, the Court doesn't have to give the relief requested which seems to be broader than activities that are defined as expressive in nature. As I said before, the puzzle in this case is, what counts as expressive in nature? You can stipulate whatever you want. You can say, "Well, I have a right to exclude those people who I believe to be infested by demons." But the idea that courts are going to have to decide in future cases what it means to be invested by demons is just not a workable rule.

 

So I think the puzzle here is, what are the boundaries of what counts as expressive in nature? Is it the intentions of the producer? Is it the amount of care that goes on? If Ali's Barbeque declines to serve blacks, but the cook in Ali's Barbeque, for each individual customer, arranges the ribs in a custom pattern based on the geometrical pattern that is brought to mind by the chef does that mean that Ali's Barbeque is expressive in nature now and can exclude African Americans?  What really worries me about this is the malleability of this category and the stipulation is no help with that.

 

Casey Mattox:  Yeah. I think you have that stipulation, but you also have the stipulation on the fact that the websites are themselves custom. And I think that's -- but I agree with you that in a sense that --

 

Prof. Andrew Koppelman:  Lots of work is bespoke. If I'm an auto mechanic, everything I do is bespoke. Everything I do as an auto mechanic is custom to what's wrong with this particular engine. Lots of goods and services are custom in that sense.

 

Casey Mattox:  There was a question at one point where it was suggested that it's not just bakers and florists and photographers, but there are also people like the caterers who are just making the chicken and the chair people and things like that. And Kristen Waggoner said "Well, I'm not coming back here with a case about chairs." And she --

 

Prof. Andrew Koppelman:  She says.

 

Casey Mattox:  -- she was limiting her argument, I think, to this context. I think the other thing too about this question about the relief requested doesn't quite match the free speech argument. I think part of the answer to that question is that there were both free exercise which would potentially provide for a broader but narrower group of people protected but a broader relief potentially, and that the Court had denied the interpretation on that question presented limited to the free speech question. I think that helps to answer the question, "Well, why the mismatch?" Well, the mismatch is because you have this question presented in a case with multiple questions that could get you to those other issues.

 

I think, yes, there are -- no doubt there are going to be more edge cases or more challenging questions that could potentially arise under this. I think basically what that gets us to in this case is the Court thinking about those things while it's creating the decision in support of 303 Creative, not causing the Court to say, "Well, we can't reach a decision in support of 303 Creative based on the stipulations based on what we actually have in front of us, but how do we in doing that not invite those broader circumstances?"

 

I will say too though, it's been noteworthy that, for the most part, these cases have been going on for 12, 15 years now, I think, litigation around these specific issues, and most of these stay in the realm of the hypothetical about what if rather than the cases that are actually being filed about the, "Well, I don't want to make fried chicken in this circumstance," or things like that. Those cases aren't actually occurring which I think will probably be noteworthy to the Court. It would be a different thing if you have hypotheticals that look a lot like real life circumstances, but we're not having those circumstances arise and I think that the Court won't be oblivious to that reality.

 

Prof. Michael Dimino:  Professor, I want to raise a question that you've brought up a couple of times about the definition of artistic or expressive, basically the, "How speechy is the conduct?" kind of question. And to what extent do you think the Court needs to expand on the test that's already there? The Spence v. Washington test that we ask whether the speaker or the person engaging in the conduct intended to convey a message and whether that message or some related message would have been understood by the reasonable audience member. Is that not sufficient to resolve the question of how expressive the web design, the flower arranging, etc. is?

 

Prof. Andrew Koppelman:  Well, the doctrinal context is that Spence triggers O'Brien and the question there is, is the state's interest unrelated to the expression of ideas? Which seems to be the case here. It's a general antidiscrimination law. They weren't even thinking about cases like this. So if we go down that route, then the state loses. This is -- I'm sorry -- then the web designer loses. What's being proposed here is an exception to O'Brien where some conduct that's regulated by the antidiscrimination law is deemed expressive enough that it is an exception to O'Brien. It's very different from the Florida and Texas cases where the statutes right on their face are targeting speech. They're targeting speech and nothing but speech and saying, "We're regulating the content of these websites." That's not the statute in Colorado.

 

Casey Mattox:  Well, but that's in Florida and Texas. This is one of the interesting things. In Florida and Texas, they would say, "No. No. No. No. That's -- all we're regulating there is conduct." And that the Fifth Circuit opinion from Judge Oldham repeatedly said that this isn't speech, this is censorship. We're not regulating the platform's speech; all we're doing is telling the platforms that you can't remove people. And I think there's a similarity in the this isn't speech, this is censorship, this isn't speech -- or this isn't speech, this is discrimination in Colorado. I think there's a similar redefining the expressive activity as something else in order to claim that it's outside the purview of the First Amendment.

 

Prof. Andrew Koppelman:  If that's right, Miami Herald is wrongly decided. Newspapers get to control their conduct, and when they won't publish your op-ed, that's not deemed to be censorship. This is regulating the content of what is on the website. If a website wants to be a website that you can rely on not to have Covid misinformation and racism, the website gets to exclude those things. The real question is whether -- and the question is going to litigated as to whether those statutes themselves violate the First Amendment.

 

Casey Mattox:  So I think the Miami Herald case is actually a good example. So if you look at the briefing from -- in 303 Creative and the two NetChoice cases, the two cases that are passing through all of those cases are Miami Herald and Hurley. So the platforms are pointing to Hurley and saying, "Hurley protects us. Hurley protects us." And similarly, you've got 303 Creative pointing to Miami Herald and saying, "We're protected by Miami Herald." Which is why I think there are some interesting First Amendment bedfellows in this case. I think that certainly there are differences between what Colorado is doing and what New York and Texas are doing.

 

I do think it's probably likely that, if you were Mark Zuckerberg or if you were Elon Musk, hopefully someone was paying attention to this argument today because I think if 303 Creative loses, there will at least probably be language in that opinion that would be really challenging that should need to have to figure out how do we make a First Amendment argument if this nondiscrimination law is going to say that we don't get to make -- that 303 Creative doesn't get to make these decisions in website design in Colorado. I think they would have to be very worried if that was the result. They could find ways to make it work. Elon Musk has a lot of money. He has good lawyers.

 

Prof. Michael Dimino:  Casey do you think -- just picking up on Professor Koppelman's point -- do you agree with him that the interest of Colorado here is unrelated to the suppression of free expression so that what's being asked for is a kind of exception to O'Brien?

 

Casey Mattox:  Part of the problem for Colorado -- I don't think it's unrelated, quite frankly, but part of the problem for Colorado is also that when you have a private right of action as they do in Colorado to say, "Is it unrelated to suppression of speech?" There are a whole lot of people whose interest is very much related to the suppression of speech and are going around looking for opportunities to try to use this law in order to suppress free speech. So I think that factors into the question or at least it should. If you've got a regime that's basically making it possible for people to go target speech, but I think the application of it here -- I think that in this particular case, I think what the Tenth Circuit said is "We're not asking -- 303 Creative is not asking for the CADA to be declared unconstitutional in toto." It's saying where it applies in this expressive context, it's obviously very, very important, it's relatively limited in the overall scope of this act, but I think it's a very important piece of that. But I think that's all the Court really has to decide in this expressive context where you're actually compelling custom design, for example, and it's clearly expressive as the Tenth Circuit has determined and the stipulations, I think, would seem to indicate.

 

Prof. Andrew Koppelman:  And I think the only thing I'll say in response to that is that it's true of all of tort law. Every last bit of tort law empowers private parties to discriminate. I can say that I'm only going to bring tort suits against African Americans or against Jews or against republicans and a private party is empowered to do that by tort law. So if this is an objection to the statutes, it's an objection to all of tort law.

 

Prof. Michael Dimino:  We've gotten a bunch of questions from viewers about public accommodations laws. And if I can kind of combine the themes from some of them and ask a new question. I'm not sure whether combining those questions and asking a new one would be sufficiently artistic and creative as to give --

 

Prof. Andrew Koppelman:  Very artistic and creative. I admire it.

 

Prof. Michael Dimino:  Yes. I'm sure that Colorado's response to a lot of hypotheticals "Well, could you force this person to -- could you force the Jewish speech writer to write a speech for the klansman," and that kind of thing. A lot of the responses in the actual case are "Well, that person wouldn't be covered by public accommodations law." But suppose that we have a state that dispenses with the formality of calling it a public accommodations law and just says that we require all businesses to be open to all comers, something like that.

 

So one of the questions asks, "Could a Catholic advertising agency be required by law to place advertisements for an abortion clinic?" Then another person asked about lawyers, "Could you require lawyers to be open to all comers?" Now maybe there's some special consideration about professional ethics there that might factor in, but even for people who think that 303 Creative should lose this case, most people are unwilling to say, "Well it's entirely up to the states," and an antidiscrimination law could have the effect of forcing the Jewish speech writer to write a speech for the klansman. Is that something we ought to worry about? Is there a principal distinction between that and others?

 

Prof. Andrew Koppelman:  I think that's directed to me. Colorado's position is that there is lots of businesses that do not hold themselves as open to the public, open to anybody, and that validly pick their clients. There are photographers who -- they don't generally advertise we're available to anybody, and so they're not covered by the law. And so the question is, suppose that you did that? Well, to go back to Casey's point and say that it doesn't happen, and it doesn't happen because you could not make an economy function in that way if there are people who provide personalized services who couldn't turn away clients because they're not a good fit. So it just makes no economic sense to do this. Nobody has done it, and so I absolutely agree that it would be problematic.

 

But I go back to the question of -- which is really the question in this case -- the Court's going to have to write an opinion. The opinion is going to have to make some sense. And so we're going to have to know what counts as expressive, who counts as an artist, to use the Courts terms. And I really need an answer to that. One of the questions the Court legitimately takes into account is, you want workable rules. A rule of law that just tells everyone, "Do the right thing," who could object to that? You don't want to do the wrong thing, do you? But it's not workable as a rule of law.

 

Casey Mattox:  Well, I'll give one example I think where the Court has upheld something like an all-comers rule that was in the Christian Legal Society v. Martinez case which the Court has largely memory hold and pretended it didn't really happen, but it did happen in 2010. And that's a case where the Court basically said -- they took as the stipulation that UC Hastings didn't just require law student organizations not to discriminate on basic categories but said "We require every law student organization to have everyone as a leader no matter who they are. No exclusions." And even said that that even means that, for example, the Black Law Students Association -- in deposition, the Black Law Students Association must agree to allow the white supremacist to be a leader in the Black Law Students Association.

 

I think, perhaps for good reason, there have been a lot of changes in personnel on the Court. It was a 5-4 decision at the time. I don't think the case is decided the same way now, but I think it does point to a potential for the constant expansion of public accommodations or the mentality of public accommodations. I think ADF had pointed to 19 jurisdictions, like I said before, that have "political" in their nondiscrimination requirements. Now you've got again, Florida and Texas and conservative states looking to say, "Maybe we can use this but use it against social media platforms." I think there's going to be an increasing tendency for governments to say, "Well, let's just address this problem by calling it discrimination and adding factors into the nondiscrimination requirements that will deal with it."

 

So I think Professor Koppelman is concerned, perhaps rightly, about a really broad opinion that doesn't cabin on the other side. I'm concerned about if the Court didn't decide this case for 303 Creative, just where does the government know that it has a limit on just how much it can compel? And right now, I don't think there's much guidance from the Court telling them that you --

 

Prof. Andrew Koppelman:  Well, the Court made clear in Christian Legal Society that if instead of governing -- a university internally governing itself, if you had a statute that said that all organizations have to take all comers, that would clearly be unconstitutional, and the Court said that in Christian Legal Society.

 

Prof. Michael Dimino:  So let me ask kind of the flip side and direct it primarily to Casey, but Andrew, of course, if you want to jump in, we'd welcome that. But what kind of First Amendment interest is there in the template, the plug and play website, the one that at least is arguably analogous to the speech in FAIR where we just say, "We're going to tell you the time and place of the wedding just like we're going to tell you the time and place of the interview." Or relatedly, what's the First Amendment free speech interest in the person who is speaking a message but whose message will likely be attributed to somebody else? So the web designer who posts the website that says, "Our story" when the "Our" is understood to be the people participating in the wedding and not the person who developed the website?

 

Casey Mattox:  Well, there's a couple of questions there and I think we've got four minutes, so I don't want to -- but I think the plug and play question is actually -- the way the Court will deal with that is to say "Well, that's not in front of us. We're not asked to deal with that. We're interpreting the stipulation saying that we're dealing with custom design to mean that we don't have to get to the plug and play question," and they'll draw the line there between those non custom and custom services. But first of all, I think the argument from Kristen Waggoner and the argument was "Look, there is -- even the same words can convey different meanings in different contexts." And so I think there is a free speech interest there that if you're saying -- even in this case, just the mere fact that this is a marriage. That conveys different things in two different contexts, at least according to the people who are challenging this. So I think there is a free speech interest there. It is harder, I completely agree.

 

I think there's, more broadly, a free exercise argument that will be raised by some of those questions. Simply being asked to participate in a free exercise context. The other thing I will say though quickly too is, I think there's an establishment problem. I think there's a lurking establishment problem if -- maybe not in the website context but imagine you're actually dealing with something where the person actually needs to be present in the church for a wedding service in order to provide that service. You could actually have a problem if the government is trying to compel people to be present at a religious service because they'd held themselves out to the public, and saying, "We will fine you. We will prohibit you from declining that service." I think you actually start running into some Establishment Clause problems as well. So that's a lot of First Amendment.

 

Prof. Andrew Koppelman:  Although now I think that you have reached the person who delivers the chairs because they actually have to physically enter the wedding venue and they have to be there afterward. The caterer has to stand by the chafing dish all through the wedding, just make sure that the Sterno doesn't go out. So the limitations to the claim are what I keep coming back to.

 

Prof. Michael Dimino:  And I take it you would think that if the Court follows Casey's idea and uses the stipulations as a way of saying "We don't need to address the point about how much speech is involved here because this person has stipulated to be creative," you would take that to be a cop out that avoids the most important question of the case.

 

Prof. Andrew Koppelman:  It's worse than a cop out because it gives lower courts a standard with no guidance as to how to apply it. If the caterer is artistic in arranging the stuff or even if the person who puts out the chairs puts them out in an interesting and creative way, is that enough? Lots of people exercise creativity in lots of ways. So I am worried about an opinion that creates random holes in antidiscrimination law, and nobody can tell where the holes are.

 

Prof. Michael Dimino:  Well, thank you both very, very much for your comments today and your time. It's been a pleasure to be part of this program with you. And thank you again to The Federalist Society. You want to wrap things up for us?

 

Chayila Kleist:  Absolutely. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. I want to thank our audience for joining and participating. We welcome listener feedback at [email protected]. And as always, please keep an eye on our website and your emails for announcements about other upcoming virtual events. Thank you all for joining us today. We're adjourned.