Refreshing the facts of 303 Creative

PAUL BUTLER, HOST: Coming up next on The World and Everything in It: debunking more falsehoods.

Last week, the U.S. Supreme Court reaffirmed the First Amendment’s guarantee of freedom of speech. The opinion in 303 Creative v Elenis said that creative artists cannot be forced to create messages that violate their consciences.

MYRNA BROWN, HOST: This is good news for everyone, but not everyone is pleased. Some seek to cast the case itself and the opinion in wrong and misleading ways. For example, here is Transportation secretary Pete Buttigieg last week on CNN.

PETE BUTTIGIEG: And I think it's very revealing that there's no evidence that this web designer was ever even approached by anyone asking for a website for a same sex wedding. Matter of fact, it appears this web designer only went into the wedding business for the purpose of provoking a case like this.

That web designer is named Lorie Smith, and the facts of the matter are not what the transportation secretary, along with many others, claim they are.

BUTLER: Yesterday WORLD’s Mary Reichard spoke with ADF President and General Counsel Kristen Waggoner to set the record straight. Waggoner argued the case on behalf of Lori Smith and 303 Creative before the Supreme Court.

REICHARD: Let’s get right to the reaction to the 303 Creative opinion. You’ve been involved in other controversial cases, like the Dobbs decision that overturned Roe v Wade. That comes to mind. But this opinion and this aftermath are different. How so?

WAGGONER: I have never seen anything like what we are enduring right now after this decision. The harassment, the threats, the very detailed descriptions of bodily harm. And just the ferociousness, even for the lawyers calling for our disbarment and criminal penalties. I’ve never experienced anything like it. I mean, I don’t know if you saw, like Newsweek published a piece and with absolutely zero evidence, called for the attorneys to be disbarred and face criminal penalties with zero evidence. I just have never seen anything quite like it. Like you said, Pete Buttigieg, but it’s also Lawrence Tribe, Neil Katyal, even Phil Weiser, the attorney general of Colorado, has blatantly misrepresented the facts that his state agreed to.”

REICHARD: Remind us of the majority opinion. It’s pretty straightforward. What does it say, in brief?

WAGGONER: It says that it's wrong for the government to force someone to say something that they don't believe. It's a very simple decision, and we would encourage all Americans to read it.

REICHARD: I want to clarify some things right away. Some mainstream reporters are saying this means that business owners can turn away gay people from goods and services. True or false?

WAGGONER: Absolutely false. The decision is very clear that non-discrimination laws continue to apply just as they always have coexisted with free speech rights under the First Amendment, and that it's wrong for someone to decline to serve a class of people because of a protected characteristic. The court also held, rightly so, that it's wrong for the government to force Americans to say things that they don't believe, to force them essentially to have to give opinions or express custom messages that violate their core convictions.

REICHARD: So a sandwich maker still has to make and serve sandwiches to gay customers.

WAGGONER: Absolutely, and that was never an issue in the case, nor was it something that anyone advocated for in the case.

REICHARD: Another falsehood I see circulating repeatedly on social media is that Lorie Smith made up a story about a gay couple asking her for help creating a gay wedding website. What really happened?

WAGGONER: Nothing could be further from the truth. And I think it shows you the desperate attempt to, first of all, I think try to delegitimize the U.S. Supreme Court, we've seen that effort play out in other ways as well, and then to undermine this victory, which is truly about free speech for everyone. This ruling protects the LGBT website designer, the Democrat speech writer, the Jewish graphic design artist; people of all faiths, people with no face people of all different views, and the ruling is very clear and how it applies to everyone. In terms of Lorie specifically, during the course of her litigation, she had a front row seat to watching Jack Phillips be aggressively prosecuted by Colorado. She saw that, she wanted to expand her business. She was already designing websites, but wanted to begin to design wedding websites. And she knew that she'd be prosecuted if she declined to promote and tell stories of same-sex weddings. And it turns out she was right because for the next seven years Colorado persistently and aggressively told the courts that she went through in the federal system that she would break the law if she declined to express those messages. In the course of the litigation, one day after she filed her lawsuit, she received through her website a request for same-sex wedding designs. And the request came from a gentleman named Stuart. And it turns out that seven years later, Stuart is now saying he didn't send the request, even though all the IT data and other suggests otherwise. It's really irrelevant to the case and factually, it's very clear looking at the IT data and Lorie's statements that the request did come in from someone. And again, I would just emphasize it's completely unnecessary to the legal ruling in the case and no court relied on it in any event.

REICHARD: Here’s another one: the conservative justices agreed to take up a case that isn’t a legitimate “case or controversy.” I’ve seen this multiple times on social media especially, people angry about the opinion without understanding the legal posture of this case. Kristen, could you explain that?

WAGGONER: I would love to. Pre-enforcement challenges are a staple of civil rights law. And what that means is that a person doesn't have to wait to be put in jail or fined, they don't have to wait until they violate the law and are facing prosecution to challenge an unjust law. Both those on the left and the right have historically used pre-enforcement challenges to be able to get laws struck down that violate the Constitution. And in terms of standing, whether there's a case or a controversy, that is relied is used as lawyers, we talk about it in terms of legal standing, as you know, Mary, and in in that you're looking at whether there's a credible threat of enforcement from Colorado, whether they might enforce it against Lorie in terms of if she were to design websites, and and declined to express support for same-sex weddings. And every court that considered this, at the appellate level found that there certainly was a credible threat, again, based on that aggressive enforcement history against Masterpiece Cake Shop and Jack Phillips, as well as the fact that for the seven years of litigation, Colorado never disavowed enforcement of Lorie. In fact, they repeatedly said that she would be breaking the law.

REICHARD: A final question here, Kristen, had the dissenting three justices reasoning prevailed in this case, what would have been the logical extension of that?

WAGGONER: Had the dissent prevailed, for the first time in our nation's history, government would be forcing people to express messages that violate their convictions. That just simply hasn't been true throughout our nation's history, and the majority decision makes that very clear, and that it takes us all the way back many, many years ago, 80 years ago, to a case called Barnett, where the court protected the right of Jehovah's Witnesses not to salute the flag in the midst of what was extremely unpopular in the midst of World War Two. And the court just continued to emphasize in decision after decision, recounting how we have protected speech and how it's made this nation so strong, and again, how it is the key to pluralism and a rich and complex society. So had the dissent prevailed, not only could they compel Lorie's speech, but they could compel an LGBT website designer to express messages that are critical of same-sex marriage or a Democrat speech writer to have to write for Donald Trump or Ron DeSantis. There's really no limit to what the government can compel if they can force Lorie to express a message.

REICHARD: Kristen Waggoner represented 303 Creative’s Lorie Smith at the Supreme Court. Kristen, thanks so much!

WAGGONER: Thank you!

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