The 303 Creative case was not decided on the basis of fake evidence.

[Ocelot II]

There's plenty wrong with the decision, as Justice Sotomayor's describes eloquently in her dissent, which I invite you to read (https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf starting at p. 33) before spouting off about this so-called fake evidence. The bogus web inquiry is not mentioned anywhere, either in the dissent or in the majority opinion. It does not appear in lower court proceedings, either in the trial court or the court of appeals. It was irrelevant, so it wasn't picked up or considered by any of the dozens of lawyers and court clerks at the trial court, appellate court, and Supreme Court levels. It's not a thing. If it had been a thing someone involved in those proceedings would have found it, probably in 2016 when the case was first filed. So stop being silly and instead pay attention to what Justice Sotomayor said. That's what's wrong with the case. It's not going to be thrown out or reconsidered because of a fake thing that had no bearing on any of the proceedings.

Also see here: https://www.democraticunderground.com/?com=view_post&forum=1002&pid=18061769 and here: https://www.democraticunderground.com/?com=view_post&forum=1002&pid=18061857

[uponit7771]

1. Don't think fake evidence is the center of concern its a fake people involved. My understanding is

... there has to be actually actions and people not just theories that involve just one side or no one on either side of a ruling.

[Ocelot II]

2. Don't you think Justice Sotomayor would have included lack of standing

in her dissent if that had been an issue? The case started out in 2016 as a complaint for declaratory judgment. This is a proceeding in which a party asks a court to rule on a legal issue before taking some action. A declaratory judgment action is an exception to the general rule that there has to be be an injury for which the court can grant relief before a party can bring a lawsuit; it allows a party to seek a court judgment that defines their rights before an injury occurs. The web designer wanted to know if she would be violating CO's public accommodations law before she started designing customized wedding web sites that excluded gay couples, and she did it by bringing a declaratory judgment action to get a decision. Therefore she had standing.

[uponit7771]

4. That assumes I know anything about any of the words that are even being used to describe

... what she would or wouldn't do in this context.

I did see a post about "reasonable apprehension of prosecution" being good enough for a case to proceed without both sets of humans and that raises a shit ton of other questions.

Hell, I have a "reasonable apprehension of prosecution" every time I see a person that looks MAGA

[Effete Snob]

6. Needless to say, there is a ton of case law...

...on what is, or is not, a "reasonable apprehension of prosecution".

No, it is not your subjective feeling about things. The word "reasonable" signals that it is an objective standard.

[uponit7771]

8. As a lover of numbers I can no doubt make the case empirically in America that certain groups of...

... people are more likely to get their asses kicked by PDs for small infractions.

No "subjective" about it in this context ... but does a case like that have to be WRITTEN for instance that a PD would be kickin said certain peoples asses to get a Pre-enforcement injunction?

thx in advance ... was just musing here

[Effete Snob]

12. Kicking people's asses for what?

I don't understand what you are trying to say.

Yes, people get their asses kicked by police. The police are not generally empowered to "kick people's asses" and police get sued with regularity for doing that.

But I still don't get what you are driving at, and I'm not sure you do either.

If you shoplift, and the police beat you up in the parking lot, then you have a case of excessive force against the police. If you ask the police "If I shoplift, will you beat me up" you do not have a case to overturn the law against shoplifting. So, I don't know what you are trying to say.

We're talking about pre-enforcement injunctions against the enforcement of a law which, either in its breadth or as-applied to your circumstances, is an unconstitutional law. We are not talking about some sort of injunction against police kicking your ass for violating a law that is itself not a problem.

[dsc]

26. No the police don't get sued with regularity for doing that

thanks to qualified immunity they can't be sued unless one can find a precedent with virtually the exact same facts which is often impossible to do. Now cities do often get sued for the police's behavior.

[Effete Snob]

5. No one in Roe v. Wade got an abortion and was penalized

No one in any of the currently-pending actions involving abortion restrictions or gender affirming care has actually violated any of the laws in question.

Pre-enforcement injunctions are a thing. They happen all of the time. The standard is whether the plaintiff has a "reasonable apprehension of prosecution".

In this case, the State of Colorado stipulated to the fact that they would prosecute if the business denied customers on the proposed facts.

Justice Sotomayor, Justice Kagan, and Justice Jackson has NO problem with that, because it is normal.

Utterly normal and mundane stuff is being held up to the media funhouse mirror to excite and entertain people who don't have a reference frame for ordinary legal principles.

[uponit7771]

7. THX !! "Pre-enforcement injunctions are a thing" This makes way more sense than any of the

... explanations I've seen so far.

So why did anyone use someone's identity, isn't that illegal !? Why not just use a hypothetical instead of a real person.

That sounds janky,

Thx in advance for any input

[Ocelot II]

9. There was no forgery. Somebody sent an on-line inquiry

using someone else's name. It would have been collected as one of the web designer's documents and records but it was never used as evidence in the case. People send in fake web inquiries regularly, sometimes as jokes. It's not forgery, and in this case it was irrelevant because it wasn't submitted or considered as an exhibit in the case. For all we know it was a joke, since the real person (a straight married guy, not in the market for a wedding website of any kind) was himself a web designer. But it was never part of the case.

[Effete Snob]

11. NO ONE "USED SOMEONE'S IDENTITY"

I've explained this extensively, including in direct replies to your comments in other threads.

No one else's identity was used as the factual basis of this case.

The case proceeded on the stipulation of the State of Colorado that they would indeed prosecute a hypothetical refusal of a customer.

That's it. Period. That was the basis of the case. No different from abortion restriction cases or gender affirming cases or "Muslim ban" cases, or TONS OF CASES BROUGHT BY OUR SIDE ON ISSUES OF IMPORTANCE EVERY DAMNED DAY!

WE bring cases like this all of the goddamned time and nobody has a problem with it.

Those doctors that are challenging abortion restrictions right now? They aren't performing abortions. They quit already, because they want to get a court decision before doing that.

This is the last time I'm doing this today....

Let's say the state enacts a ban on selling cupcakes. You are opening a bakery. You want to sell cupcakes. No, you don't have to sell a cupcake and get arrested in order to bring a case. If you go to the state and they say "If you sell a cupcake we will fine you" then you can go ahead and file a case to vindicate your right to sell cupcakes.

Now, please stay with me. During your case, you have a legal duty to disclose any communications you might have with customers or potential customers that are relevant to your case.

AFTER you file your case, someone contacts you on your webform and says "I want to buy a dozen cupcakes."

Number one - you are under a duty to produce that relevant communication you received from your webform which anyone, including someone who is playing a prank on another bakery owner, filled out and hit "submit".

Number two - you better not respond to that communication and say, "Okay, we'll make you a dozen cupcakes." In fact, you should ignore the communication.

Why? Because making and selling cupcakes is illegal. You have a duty to disclose that communication, but you would be an idiot to go and break the law which you just filed a lawsuit for a pre-enforcement injunction.

Now, let's get to the "isn't that illegal?"

Isn't what illegal? Tell me who it is you are saying did something illegal. Tell me specifically who that person is and what they did.

Someone put bogus information into a web form. We're gonna start locking people up for that?

[uponit7771]

15. "Isn't what illegal?" Isn't using someone's identity for a fake inquiry illegal? tia.

There had to be specifics about that person (not just a rando generation) for anyone to contact the inquirer about anything.

Someone put bogus information into a web form. We're gonna start locking people up for that?

This is *NOT* just rando gen info, they pointed to a specific person and that's not a prank. Lets say someone did that to induce swatting or to get someone fired from a job people would be in trouble.

But I get the idea, there doesn't need to be someone on the other side for pretrial stuff (or whatever) to happen.

Thx for your patience in explanation

[Effete Snob]

16. I asked you who did something illegal

Everyone on DU who does not indicate where they really live or who put in a fake birthday. Was that illegal?

[uponit7771]

17. That's a person using rando data for their own purposes not a person using specific ID data about

... another person for other purposes.

Potential ID theft doesn't matter in this context seeing what happen looked like BAU before CO courts.

[Effete Snob]

18. What?

The case was brought in a US federal court, not a Colorado state court.

[walkingman]

3. Christian Nationalism is America's greatest threat.

[marble falls]

10. Thanks Ocelot. You tried talking sense to emotional reactors. I'm surpised the reaction wasn't worse

[hardluck]

13. Just want to say thank you

You, Onenote, and Effete Snob have been doing great work provide solid legal background and factual evidence in an effort to educate DU. You must have the patience of a saint as some of the posts are maddeningly frustrating.

The media certainly does a disservice on this and other legal issues and as you correctly pointed out takes away from an excellent dissent which should be front and center.

[Takket]

14. Yeah someone said it was a pre-enforcement case or something like that

So the fake request doesn’t really matter because no request was required to file the case.

Post 11 here:

https://democraticunderground.com/100218055835

[Freethinker65]

19. The hypothetical case of a pregnant female being forced to die because the State has no exception

was considered by the Court and it was determined there is no religious right to a female wanting to live, but there is a right for hypothetical religious zealots to refuse services to same sex couples?

Is that it?

[Mosby]

20. Rec.

Thanks for the links.

[ismnotwasm]

21. It's a shitty ruling --doesn't need additional drama.

It’s a mean, cruel bullshit ruling that does only harm, regardless of its legal standing

I’m no lawyer, but I’ve read, that “the law is an ass” a time or two

[Ocelot II]

23. There are plenty of reasons to find it objectionable

without going down a fake rabbit hole of fake evidence and claimed procedural problem. Justice Sotomayor sorts out what's really wrong with it, here: https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf starting at 33.

[ismnotwasm]

25. This is my understanding

And I appreciate those clearing the air so to speak

[EleanorR]

28. I found this part of her dissent particularly interesting

Crucially, the law “does not dictate the content of speech
at all, which is only ‘compelled’ if, and to the extent,” the
company offers “such speech” to other customers. FAIR,
547 U. S., at 62. Colorado does not require the company to
“speak [the State’s] preferred message.” Ante, at 19. Nor
does it prohibit the company from speaking the company’s
preferred message. The company could, for example, offer
only wedding websites with biblical quotations describing
marriage as between one man and one woman. Brief for
Respondents 15. (Just as it could offer only t-shirts with
such quotations.) The company could also refuse to include
the words “Love is Love” if it would not provide those words
to any customer. All the company has to do is offer its services without regard to customers’ protected characteristics. Id., at 15–16. Any effect on the company’s speech is
therefore “incidental” to the State’s content-neutral regulation of conduct. FAIR, 547 U. S., at 62; see Hurley, 515
U. S., at 572–573.

[Jersey Devil]

40. No drama, just the facts, to paraphrase Jack Webb

It's one thing to conjure up a hypothetical denial of service and quite another to take it a step further and just make up characters to use to bolster claims in litigation. If the Plaintiff's in 303 said, "suppose this happened?", that would be be a hypothetical question that the court ususally does not answer. But to outright lie and say these people and situations existed is a fraud upon the court and should be addressed.

[Ocelot II]

46. Except that's not what happened.

She didn't make up a fake character; she asked a court for a declaration as to whether Colorado's public accommodation law would impact her proposed wedding web design business because she did not want to create web sites for same sex couples. She asked for a decision on the law, and the fake inquiry never was used as evidence - and it wouldn't have made any difference if it had, since the case was based on legal issues, not questions of fact.

[underpants]

22. Can't argue with you. I was misinformed. The part that gets me is thus ADF

They clearly have no problem creating this fake story. They knew where this was going to end up and what the decision would be. Yes it was 7 years in the making but they had the majority even then. The ADF has enough money to push this up the courts. The fact that it’s pretty clear they made this up and they had absolutely no hesitation at all.

[Effete Snob]

32. "They clearly have no problem creating this fake story"

If you are talking about the fake webform submission, what shows they created it?

I'm not going to link to the National Review, but the ADF has addressed this point:


"Kristin Waggoner, CEO and general counsel at ADF, suggested during a press call Friday that the request sent through the form on Smith’s website was made by someone posing as Stewart. It is “undisputed” however that the request was received, she said, whether it was from “a third party or a troll.”"

[underpants]

45. Nothing but it stinks.

So this business had just started and it came up on (even a very local) Google search? It couldn’t have been from a “top ten….” Yelp type list.

I’m sorry. I know we are fact based here but this reaks off being completely orchestrated.

[Effete Snob]

48. no

Again, you don't have the basic facts nailed down.

The communication came in AFTER the suit was filed and had gained media attention (since they were publicizing it).

I can point to examples here on DU where people were encouraged to submit interesting things to review sites, web contact forms, etc. in the wake of some sort of notoriety gained by a business.

Do you find it at all odd that whomever submitted the form used the actual contact information of a website designer in Colorado?

If, as you believe, the ADF did this on purpose (and informed the person responsible for the legal filings), do you have any thoughts on why they chose to use someone who could be easily contacted to deny it, as opposed to simply putting in fake contact information and claiming that the person must have made an error using the form when called on it?

Here:

https://www.democraticunderground.com/100216182258#post36

[underpants]

49. I understand all that. No I'm not basing this on facts

because we don’t know. We’ll never know unless someone hacks into it. Not that I’m recommending it.

I think the ADF did this. It’s just my sense. Let’s consider that ADF did this and filed it, what’s worse (considering that ADF knew what ruling they’d get), this question coming out OR a completely made up name address and phone number? They’d have to be sure a phone number doesn’t exist.

[in2herbs]

24. I still don't accept the fact that the USSC had to accept the issue on appeal. I understand the

web designer's right to appeal, but viewed as CO being the only state to infringe on her rights and that there are other states that would allow her to exercise her (hypothetical) decision, IMO there were two choices, she could move to a state where she could exercise her (hypothetical) decision -- which is something the court is forcing women to do since overturning Roe, or prohibit the USSC court from deciding state court issues based on hypotheticals. State's rights!! Isn't this what the red states are always screaming about?

[brooklynite]

27. So, by your logic, you couldn't challenge a State abortion restriction because you could move?

[in2herbs]

29. No. In 1973 the USSC deemed the right to an abortion was a federally protected right, not a state

right.

[Polybius]

51. But that was overturned last year

[Ocelot II]

47. They didn't have to accept it; certiorari is discretionary.

That means four of the nine decided it raised a substantial constitutional question that they should consider.

[Jersey Devil]

30. Then why does Neal Katyal think it is important?

He's argued 50 SCOTUS cases, including this week's Moore v Harper re reapportionment and is saying that the fabrication of the facts in 303 is grounds for a hearing to throw out the case for not having a real case or controversy as required by the Constitution,

[Ocelot II]

31. What Katyal said was that IF the case was decided on the basis of false evidence

Last edited Mon Jul 3, 2023, 05:24 PM - Edit history (1)

it could be vacated. But it wasn’t. The fake web request was never accepted as relevant evidence in the case and was only in the court files because it was produced during discovery as part of the plaintiff’s business records. And the guy whose name was used was never a plaintiff. He has been described falsely as a fake plaintiff but he was never a party at all. The only plaintiff is a real one, the web designer, who brought a legitimate declaratory judgment action seeking a court interpretation of the state’s public accommodation law. If there had been fake evidence or a fake party the case could be vacated; Katyal was speaking hypothetically. But those things didn’t happen.

[Jersey Devil]

35. I disagree

First of all, I saw Kayayal's statement. He was quite clear about it. The Supreme Court does not issue declaratory judgments. Cases have to be based on a real "case or controversy" as required by the Constitution.

[Effete Snob]

38. He said "according to the article"

He also botched the rule in question....

https://www.law.cornell.edu/rules/frcp/rule_60

Rule 60. Relief from a Judgment or Order

[...]

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

[...]

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

[...]

(c) Timing and Effect of the Motion.


(1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.


First off, the District Court ruled in favor of the state of Colorado, so there is no basis for them to seek relief from the judgment anyway.

But he didn't review the facts, the procedural history of the case, or even the rule in question, before agreeing to go on TV.

[Ocelot II]

42. I think you might have misunderstood what he said.

Last edited Mon Jul 3, 2023, 05:22 PM - Edit history (1)

The Supreme Court does not issue advisory opinions, meaning it doesn't rule on something that isn't a live case or controversy. That's what he was talking about. But a declaratory judgment is a real thing. In order to have constitutional standing when bringing a declaratory judgment action, a plaintiff must establish that they suffer or face an imminent injury in fact that is traceable to the defendant’s conduct and that is likely to be redressed by a favorable decision. A case or controversy exists in a federal declaratory judgment action if the facts alleged show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. In this case the plaintiff understood that she might be prohibited by the state's public accommodation law from refusing to offer web design services to same-sex couples, so she brought a declaratory judgment action to get a ruling from a court that the public accommodation law did not prevent her from exercising her right to free speech by designing a web page that reflected her religious beliefs. If anyone at any level of these proceedings, which had been going on for seven years, had believed there was no justiciable controversy, why didn't they raise that objection from the get-go? Why didn't Sotomayor raise the standing issue in her dissent? It's possible Katyal was responding to what he had heard in the media about the fake web inquiry and the fake plaintiff (there was no plaintiff other than the web designer) before those "facts" were examined and debunked.

[Effete Snob]

34. Because he was going on what he heard

Watch the MSNBC clip again.

Especially where he says "according to the article".

He didn't independently look into the actual details of this case and is going on the same misperception.

[onenote]

36. I'm fascinated by the level of Katyal worship here.

Yes, he's an accomplished Supreme Court litigator. But he's not infallible. Yes he represented the winning side in Moore v. Harper this term. He also suffered a 9-0 defeat in Tyler v. Hennepin. And he's lost a number of other cases as well over the years (such as the challenge to Trump's immigration ban in Trump v Hawaii). Moreover some of his wins have been in pursuit of decidedly un-progressive outcomes in which the Democratic members of the court have strongly disagreed with his arguments.

[Effete Snob]

39. You've seen this before

Any lawyer who goes on MSNBC and says what people want to hear is absolutely correct and beyond question.

[Ocelot II]

43. Katyal is a very skilled appellate lawyer, and I respect his opinion,

but in this instance he seemed to be responding in real time, more as a commentator than as a lawyer, to brand new reporting about the fake web request before he was in a position to find out what really happened. This news item was found in the court files by some reporter who probably didn't understand that most of what turns up in court files never sees the light of day as evidence because it's irrelevant - but it was presented as a huge scoop and a Big Fucking Deal. I read some other news clips claiming that the guy whose name was on that fake requests was a fake plaintiff. He was never a plaintiff, fake or otherwise; the only plaintiff in the case was the web designer, who never even responded to the inquiry.

[onenote]

33. I agree with the OP and others explaining why the "fake" evidence is a non-issue, but

I will offer a couple of clarifications, based on my having reviewed not only the Supreme Court case but the related pleadings, including the decisions issued by the district court and the tenth circuit as well as some of the pleadings in those cases.

First, the "fake" email actually was discussed in the district court decision -- ironically, the district court ruled that the email did NOT support the plaintiff's standing argument because it was too vague and speculative. To quote the district court: "the Court cannot determine the imminent likelihood that anyone, much less a same-sex couple, will request Plaintiff’s services. The Plaintiffs also direct the Court to an email that Ms. Smith received on September 21, 2016, after the Complaint in this matter was filed. Ostensibly in response to a prompt from 303’s website asking “If your inquiry relates to a specific event, please describe the nature of the event and its purpose”, the email states: “My wedding. My name is Stewart and my fiancee is Mike. We are getting married early next year and would love some design work done for our invites (sic.), place- names(sic.), etc. We might also stretch to a website.” This evidence is too imprecise, as well. Assuming that it indicates a market for Plaintiffs’ services, it is not clear that Stewart and Mike are a same-sex couple (as such names can be used by members of both sexes) and it does not explicitly request website services, without which there can be no refusal by Plaintiffs. Because the possibility of enforcement based on a refusal of services is attenuated and rests on the satisfaction of multiple conditions precedent, the Court finds that the likelihood of enforcement is not credible."

The Tenth Circuit reversed the district court on the standing issue (but otherwise ruled for the defendants against the plaintiff on the merits). However, the Tenth Circuit's rationale for reversing on the standing question was not based on the fake email or the district court's assessment of it. Rather, the Tenth Circuit, reviewing the issue of standing "de novo", essentially found that the district court erred in finding that, independent of the email, the harm that the plaintiffs were seeking to avoid was too speculative to support standing. The relevant part of the Tenth Circuit opinion: "According to Colorado, Appellants’ fear of prosecution is not credible because it requires the court to speculate about the actions of Appellants’ would-be customers. We disagree. Appellants have a credible fear of prosecution because Appellants’ liability under CADA and Colorado’s enforcement of CADA are both “sufficiently imminent.” [cite omitted] Appellants’ potential liability is inherent in the manner they intend to operate—excluding customers who celebrate same-sex marriages. Thus, Appellants are rightfully wary of offering wedding-related services and may challenge CADA as chilling their speech. .... Contrary to Colorado’s assertion, Appellants’ fears do not “rest[] on guesswork” or “a highly attenuated chain of possibilities.” Colorado’s Br. at 29. If anything, it is Colorado that invites this court to speculate. Assuming Appellants offer wedding-related services to the public as they say they will, there is no reason to then conclude that Appellants will fail to attract customers. Nor is there reason to conclude that only customers celebrating opposite-sex marriages will request Appellants’ services. In short, we find nothing “imaginary or speculative” about Appellants’ apprehensions that they may violate CADA if they offer wedding-based services in the manner that they intend."

Note again, the Tenth Circuit did not rely on or even reference the email -- its decision was that the necessary risk of harm was "inherent" in the manner in which the plaintiffs intended to operate.

Finally, the Supreme Court disposed of the standing issue almost summarily, agreeing with the Tenth Circuit's conclusions about the non-speculative nature of the harm that the plaintiff was seeking to address, again without citing or otherwise lying on the fake email. And, of course, the three dissenters did not express any disagreement with, or even bother to mention, the conclusion of the Tenth Circuit on standing or the majority's endorsement of that conclusion.

That the fake email wasn't a relevant factor in the ultimate resolution of the standing issue isn't particularly surprising. As others have mentioned, preemptive actions actions based seeking to block, prospectively, the allegedly unconstitutional enforcement of a statute are commonly allowed.

[LAS14]

37. THANK YOU!!! I always like to think one way we dems are different...

... from the repubs is that we respect facts.

[gratuitous]

41. My understanding . . .

And I could be wrong, but the person that Lorie Smith claimed to have contacted her about creating a website for his same sex wedding was not identified until just a couple of weeks ago. That's when a reporter for AP decided to contact that person. It took some time and digging, but the reporter finally found the guy, who said he had never contacted Lorie Smith about designing a web site, said that as a website designer himself, he could probably do it no problem, but that he wouldn't do that, because he's been married to his female wife for the last 15 years.

My understanding is that this information was not generally known to anyone, and certainly not known to the justices at the time the majority opinion was written, which might explain why it wasn't mentioned by anyone.

[Ocelot II]

44. It was also irrelevant, since case was decided on a motion for summary judgment,

and there was no trial; the parties stipulated to the facts. Even if this had been a real contact and even if Smith had responded one way or the other it wouldn't have made a damn bit of difference because the case was decided on an issue of law. Wrongly, I think, but this inquiry is completely irrelevant to the outcome and people are making a ridiculous thing out of it. It's a very tiny tree in a very large and wrong forest.

[rictofen]

50. Thank you for trying

Kick.