Let's Talk About 303 Creative

I'm not a lawyer, but I am interested in constitutional law, and sometimes, I like to imagine what I'd write on a particular case that the supreme court decides.

Now, for hopefully obvious reasons, I usually imagine myself writing dissents which join the liberal minority, or concurrences for less ideologically divided cases drawing out interesting tidbits of constitutional law. (See, for example Gorsuch and Jackson's concurrence to a unanimous ruling on property tax law emphasizing that punitive fines must be “reasonable”)

However, in the case of 303 Creative v. Elenis, a case ruling that it was a violation of free speech rights that the State of Colorado might hypothetically require religious bigot Lori Smith of Aurora, Colorado to produce a website for a same-sex wedding, I actually would have concurred with the majority? Maybe?? Also: in said concurrence, I would've talked about furries.

Part of the problem with this case is that it's entirely rooted in hypotheticals. Lori Smith has not created wedding websites, and may well never create wedding websites. The one gay couple who is alleged to have inquired about Smith building a website does not exist. The supreme court regularly denies cases standing for being based purely on hypothetical or future events, but in this case, the court found that the “chilling effect” of Colorado's antidiscrimination legislation was so great that simply Lori's fear that she would be punished was enough to establish standing to sue.

Now, in general, I'm in favor of broadening the standard under which one can gain standing, especially in free speech cases.The State (used here broadly) is an extremely powerful entity, and I think generally it's a good thing if people are able to prevent laws violating their rights from going into effect without having to first break said laws, bringing the full force of The State down against them, in the hopes that a court will side with them.

(The current majority seems disinclined to agree)

The issue with this case is that because Lori has not even started to produce wedding websites, there is no real clarity as to how she would actually create such a website. This creates a situation in which the majority and the dissent seem to be imagining two fundamentally different scenarios.

For the majority Lori is an artisanal site designer, who will, every morning lovingly select <blink> elements from the <div> fields, and passionately handcraft them into bespoke websites, individualized for each of her clients.

For the dissent, however, this woman is to be little more than a glorified squarespace. She'd offer a series of templates, then punch in the names and images sent by her clients.

Who'd in the end, host these websites? Who'd hold the copyright? Nobody on the court seems to think about those questions, because even though the justices have certainly become more informed on the nuances of digital content production and ownership, they are still far from native to the complexities that emerge in this sphere.

The problem here is that we just don't know any details. I'd likely, for this reason, begin my concurrence with an argument that the court should not have granted cert to (i.e. agreed to hear) the case (if I was feeling particularly petty, I might well have cited Amy Coney Barrett's Law Review Article about how SCOTUS should decline cert if the correct decision will produce an unworkable precedent). But, I would say, if we are forced to deal in the realm of hypotheticals, let us deal in the realm of hypotheticals.

(this is the part where I talk about furry art)

I'd write:

It seems to me that there is a difference between publicly advertising ones availability to create commissioned artwork, and offering to provide a content-neutral good or service. While traditionally drawn artwork commissions are not a particularly common commercial enterprise these days, there are communities in which this practice continues to thrive. One such environment is the so-called “furry community.” This is a group of individuals who enjoy, celebrate and identify with sentient, typically bipedal, anthropomorphized animals, called Anthros. Some, though by no means all of these individuals create “fursonas,” or Anthro representations of important aspects of an individual's personality.

Many artists within the Furry community make their living by accepting comissions to draw the Fursonas of others for pay. Some of these artists advertise publicly their availability for commissions on websites like furaffinity.net.

Now, while many within the Furry community identify as LGBT, there is a subgroup of furries who do not, and are in fact, stridently opposed to the civil rights advancements of the past century. It seems to me, unambiguously true that a creator within this latter group would be well within their rights to refuse a commission to draw two Anthros of the same gender cuddling or otherwise showing affection, even if said Anthros were the fursonas of a real same sex couple.

I'd then go on to argue that a custom-designed wedding website is not that different from a furry art commission, and that, to the extent that Lori intends to produce custom-designed artworks and layouts for each client's website, the First Amendment states that she not be required to include certain elements, statements or images in said website.

I'd note that it is important to distinguish between this bespoke design website and a website template. If a business provides an automated or semi-automated means to set up a website based on a template (where one simply adds their name and uploads a picture to a previously designed website) then that commercial service must not discriminated based upon the names and photos provided.

Likewise, if a bespoke website design is offered for sale (rather than for license) a creator may not pry into the intentions of the customer after purchase. If Jill requests to purchase the design of a custom wedding website for “Jill and Many,” a creator may not refuse to create said website simply because they believe that Jill will later modify the code and the embedded images in order to make it about a wedding between Jill and Mary, just as a commissioned painter cannot prevent the person to whom they sold the painting from modifying it in a way that subverts its original meaning.

Furthermore “hosting a website” is more akin to public accommodation than creative expression, so if Ms. Stevens were to refuse to host gay marriage websites created by others (if she were willing to do the same for straight marriage websites), that would likewise be permissible for a state to forbid.

I'd end with a note that freedom of speech protections apply just as much to people harmed by discriminatory activities as it does those who wish to discriminate, and that those harmed by the behaviors of this persons speech may identify them publicly and loudly, in the hopes of convincing them to change their views or drive them out of business.