WASHINGTON – In the wake of the U.S. Supreme Court’s historic opinion protecting the free speech rights of all Americans, commentators and activists have propagated false information about 303 Creative v. Elenis.
It’s time to set the record straight.
“This desperate attempt to malign ADF, our client, and a critical ruling affirming all Americans’ free speech blatantly distorts the facts of the case and the nature of pre-enforcement lawsuits,” said ADF CEO, President, and General Counsel Kristen Waggoner, who argued before the Supreme Court on behalf of Lorie Smith and 303 Creative. “To say that Lorie Smith or ADF fabricated a request for a same-sex wedding website is a lie. It would make no sense to have fabricated a request because one wasn’t required for the court to decide her case. To pretend that a request that nowhere featured in the Supreme Court’s decision was at ‘the heart’ of the case demonstrates an ignorance regarding the legal principles involved. And it’s telling that many who push this false narrative can’t bring themselves to consider the more likely scenario that ‘Stewart’ or another activist did in fact submit the request.”
This follows a wave of misinformation surrounding the case, ignited by a June 29 article in The New Republic, which falsely insinuated that ADF and client Lorie Smith fabricated a request for custom design work for a same-sex wedding. It is undisputed that Smith received the request in September 2016 after she filed her case, and that she has received other requests for custom wedding work while this case has been pending. Regardless, whether she received any requests at all is irrelevant to the legal issues in the case. In fact, neither the court of appeals nor the Supreme Court mentioned any such request in their opinions.
Smith’s case was a pre-enforcement challenge, which allows people to avoid the choice between risking prosecution or giving up their freedom. Pre-enforcement lawsuits have been a hallmark of America’s tradition of civil-rights litigation for over a hundred years. And the Supreme Court has ruled on more than a dozen pre-enforcement cases in the last ten years. Pre-enforcement challenges have been brought by parties across the ideological spectrum. This includes the ACLU, the Southern Poverty Law Center, Lambda Legal Defense and Education Fund, to name a few.
“Perhaps the most appalling episode in this entire spectacle is the state of Colorado’s demonstrably false statements to media about the case,” Waggoner continued.
In a July 3 article in The Hill, Colorado Attorney General Phil Weiser is reported as saying: “Our position in this case has been there is no website development happening, there is no business operating. This was a made-up case without the benefit of any real facts or customers.”
This directly contradicts the facts to which the state stipulated, which make the attorney general’s statement to the media demonstrably false. Smith incorporated 303 Creative in 2012, four years before the lawsuit was filed. Colorado admitted to the court that Smith offers her website and graphic design to the public (Colorado Brief in Opposition, p. 5) and it stipulated that 303 Creative is a for-profit limited liability company organized under Colorado law and that, as a Colorado place of business, it regularly provides graphic and website design services. (Stipulations 42, 45, 71, 92, 93). The state also conceded that her website designs are expressive and communicate a message, that she “gladly” works with all people, including those who identify as LGBT, and that her decisions on what custom graphics and websites to create are based on the message. (Stipulations 47, 64-65).
“Everyone, including those who identify as LGBT, should be thrilled that the Supreme Court upheld free speech in 303 Creative. This manufactured sideshow is a frantic attempt to delegitimize a historic Supreme Court decision, a client whom Colorado censored for seven years, and a court that upheld a foundational American principle,” Waggoner added. “For those who aren’t happy with it, they should criticize the ruling based on its substance rather than perpetuating falsehoods about the case.”
The court’s full opinion can be accessed here.
Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.
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