This series of posts, written by Prof. Richard Re (Virginia), is based on his draft article, "Does the Discourse on 303 Creative Portend a Standing Realignment," which is forthcoming in the Notre Dame Law Review Reflection.
In my first post, I critically discussed some popular objections to 303 Creative v. Elenis and noted that case law established a "credible threat" test for standing. Now, I'd like to explore the issue of standing more extensively. Was the credible threat test satisfied in 303 Creative? Here's an edited excerpt from my paper:
Drawing on the court of appeals decision below … the Court adduced three reasons why the threat facing the designer [plaintiff Lorie Smith] was credible. First, "Colorado has a history of past enforcement against nearly identical conduct." This factor is very powerful. If someone has done something and been enforced against, that would seem to make it credible that a new person would suffer enforcement for similar conduct.
Second, "anyone in the State may file a complaint against Ms. Smith and initiate 'a potentially burdensome administrative hearing' process." So, even if most or nearly all people in Colorado would decline to initiate enforcement against the designer, it would only take one person to initiate proceedings and generate alleged censorship. This too seems like a significant point in favor of standing.
Third, "Colorado [has] decline[d] to disavow future enforcement proceedings" against the plaintiff. With the case pending at the Court, the State was obviously well aware of what the plaintiff had in mind and could have put everyone at ease by disavowing any interest in enforcement – as sometimes does happen as late as oral argument. Yet Colorado declined to do so. Instead, the State stayed conspicuously quiet about whether it would enforce. Given the circumstances, that silence speaks loudly. Who wouldn't view the threat as very credible indeed?
The Court then wrapped up: "Before us, no party challenges these conclusions." The dissent, too, declined to take any issue with this persuasive and largely undisputed analysis.
