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303 Creative May Have Been A Bit Too Artistic With The Facts Of The Case. Like, Sanctions Level Artsy

I'm betting on the next case being called 304 Creative. There, they'll fabricate the plaintiff too.

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(Photo by Ted Eytan / Flickr)

We’ve known that the 303 Creative case was about as authentic as the Truman Show this whole time. Months before the Supreme Court conferred a right to discriminate against a protected class, Mark Joseph Stern and others pointed out how manufactured this case was, seeking an advisory opinion because the plaintiff was never asked to make an actual website that would go against her beliefs. Lacking standing is — theoretically — a big deal when you’re trying to take a case to court, so the lawyers and team of heavily funded donors did what any competent attorney would do… they just made some shit up that put their client in the best light possible. From Yahoo:

In the federal lawsuit filed preemptively seven years ago by Lorie Smith, the graphic artist cited a request from a man who says he never asked to work with her, according to the Associated Press. But Smith cited a man named Stewart in 2017 court documents including a website service request from him, which detailed his phone number and email address.

When Melissa Gira Grant, a writer for The New Republic, contacted Stewart, he said that no such thing had happened. Stewart told the outlet that he was not gay, has been married to a woman for 15 years and is a web designer himself.

Goes to show that ChatGPT isn’t the only one submitting false, easily verifiable filings to the courts. As expected, someone — that someone not being the Supreme Court — took the time to fact check the documents. You might expect the Supreme Court and its clerks to be attentive enough to look and see if everything in the record is as it’s supposed to appear, but let’s remember that Alito’s defense against ruling in favor of the guy who took him on a six figure fishing expedition was that he didn’t see his printed name on the filing so *shrug emoji.*

The Supreme Court justices can’t be penalized for treating this PR sham like an actual case, but the lawyers who knowingly put these mischaracterizations out there could end up in trouble. Unlike the Supreme Court, lawyers have an actual code of ethics that they can be taken to task for violating.

Sherrilyn Ifill, former president of the NAACP Legal Defense Fund, said that the claim in the case “is potential fraud on the Court,” which “warrants investigation, potential vacatur & disciplinary proceedings.”

“It also should be seen as a consequence of the Court’s apparent zeal to hear this case which did not meet standing even w/o fraud,” Ifill tweeted. In another tweet, she added that attorneys “are prohibited by ethical & procedural rules from making misrepresentations to the Court. If this story about ‘Stewart’ was made by her lawyers in briefs, or at arguments, it’s a serious issue.”

The fact that the lawyers are threatened with disciplinary action now, almost 7 years after evoking the spectre of Stewart, speaks to the importance of courts not issuing advisory opinions. If this was an actual case, Stewart would have 1) known about it 2) mitigated the unopposed sob story that Smith and her PR team were able to cultivate without their being an opposing party and 3) drive home that the court, Supreme or otherwise, had no business issuing advisory opinions because of Article III.

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Legal Scholars: SCOTUS Can’t Be Forced To Reconsider “Made-Up” Case — But Lawyers Can Be Punished [Yahoo]

Earlier: The Supreme Court Is Lying To You About This Web Designer Opinion

Supreme Court Cares Less About The Facts Of A Case Than Hungover 1Ls

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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