Live from Music Row Thursday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed all-star panelist Braden Boucek of the Southeastern Legal Foundation in studio to comment upon Colorado web design firm, 303 Creative’s free speech rights.
Leahy: We are delighted to welcome into our studio, the all-star panelist director of litigation for the Southeastern Legal Foundation, Braden Boucek. Welcome, Braden.
Boucek: Thanks for having me. It’s great to be back.
Leahy: We are delighted to have you here. And, of course, you’ve got that keen legal mind, and there’s so much going on in litigation. I want to talk to you about a very weird story. It is a case before the Supreme Court. I can’t believe this is actually something that’s been litigated at the Supreme Court. There’s a website designer in Colorado. What’s the name of the company?
Boucek: 303 Creative.
Leahy: And so they just design websites. They were sued by some folks who they turned down for designing a website. Tell us about that.
Boucek: Yes. This is another case out of Colorado. A lot of people remember the Jack Phillips case, the baker who didn’t want to bake a cake for a gay wedding. That case went up, and the Supreme Court ultimately ruled that Colorado, under its human rights statutes, was unconstitutional because it violated his religious rights.
But the court never actually reached the question of how the public accommodations law squared with someone’s speech rights. And here we have 303 Creative, which is a website designing company.
Leahy: This is like just one person or a couple of people who design websites, right?
Boucek: Yes, it’s definitely a mom-and-pop.
Leahy: It’s a mom-and-pop website designer.
Boucek: That’s right. Unlike a cake, there’s really no question that designing a website involves pure speech. If you’re going to fine and punish somebody for refusing to design a website celebrating an LGBT wedding, you are undoubtedly punishing someone.
Leahy: Hold on. If I’ve got a website design company, don’t I get to decide who I take on as a client? There are many factors that you take on when you look at client engagement. Is it going to be a successful engagement? Are they going to pay me enough money? Did they specifically say, we’re not going to design your website because what was an LGBTQ wedding? What’s the element of the case?
Boucek: What they were saying is, we won’t promote this message for anybody. It doesn’t matter if you’re gay. It doesn’t matter if you’re straight. There are just words that we won’t say as part of our website design business.
And the case really rises and falls on this distinction because, of course, if they just wanted to deny service based on their being Black or based on their being Jewish or any other protected characteristic, nobody would suggest that that’s constitutionally protected. But what is constitutionally protected is requiring somebody to say words that they do not believe in.
Leahy: How did this case arise? Which one of these is the defendant, which is the plaintiff, and how is the state of Colorado involved? And who was the original client who said, I want you to build me an LGBTQ wedding site.
Boucek: 303 Creative is the plaintiff in this case, and they initiated the lawsuit because they can’t even get their business started because it would violate the Colorado human rights laws.
Leahy: But I got to understand this now, who do they sue?
Boucek: They sued the state of Colorado, essentially for the commission itself, which would have punished them had they acted pursuant to their conscience and denied services.
Leahy: Was there an actual client that came to them and said, hey, we’re going to have an LGBTQ wedding, and we want you to do a website? Was there a client?
Boucek: No. This is what’s called a pre-enforcement challenge. They raise this because one of the benevolent features of American law is you don’t have to wait and risk punishment or fines before…
Leahy: So they raise the question.
Boucek: They raise the question. Correct. There’s little doubt that Colorado punishes people for these statutes. I mean, Jack Phillips, I think, is on his fourth human rights violation for not making a cake. Jack, if you’re listening, move to Tennessee. (Boucek chuckles) Come on, get out of Colorado. This is crazy. This is crazy.
Boucek: You’ve got to admire the courage that it takes for people to face this.
Leahy: Or for a small business to be in business in Colorado. The Supreme Court heard the case. Oral arguments were held. What did you take away from those oral arguments?
Boucek: I think the oral argument went very well for the free speech side if I had to guess. I think it’s probably going to be a six-three vote in favor of the website designer. It was just really hard for the likely dissenting justices to characterize this as discrimination on the basis of status rather than what it really was a woman who just did not wish to utter a message that she found objectionable.
Listen to today’s show highlights, including this interview:
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Tune in weekdays from 5:00 – 8:00 a.m. to The Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Braden Boucek” by Braden Boucek.
