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‘So to Speak’ podcast transcript: 'Are cakes speech?' with Alliance Defending Freedom's Kristen Waggoner
Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Kristen Waggoner: There’s 79 countries that have blasphemy laws and a number of them that have what they call hate speech laws that fall under the blasphemy, which is the same kind. It’s rooted in the same premise and it’s just so... among other things, among the – in addition to the violation of human rights, you can’t have self-government, you can’t have democracy. If you hand the keys of the kingdom over to the state and what can and can’t be said...
Nico Perrino: Hey everyone. Welcome back to the show. I am, as always, your host, Nico Perrino. Quick note before we get started. Today’s conversation is with Kristen Waggoner. She is the president, CEO, and general counsel of the Alliance Defending Freedom which some of you might know is a Christian public interest law firm that litigates around issues of religious freedom, marriage, family and parental rights, and pro-life issues. But for the purposes of this podcast and this conversation, we are focused on ADF’s involvement in litigation surrounding free speech issues, particularly where there is some sort of nexus with religious conviction.
The firm is incredibly effective and somewhat controversial. On the effective side, it is played various roles in something like 74 Supreme Court victories and since 2011, has won 15 times at the Supreme Court. Now on the controversial side, among it’s most high profile cases are those involving the overturning of Roe v. Wade, it challenged the Affordable Care Act’s mandate that birth control be made available in employee health plans – this is that 2014 Hobby Lobby case. And also a recent challenge to the FDA’s approval of mifepristone, I hope I’m pronouncing that correctly.
It’s a common medical abortion drug. ADF has also taken on high profile and controversial free speech cases which are the subject of this conversation. These include the recent Supreme Court case involving a web designer who didn’t want to be compelled to design wedding websites for same sex weddings, but before that they also litigated the 2018 Masterpiece Cake Shop case involving a cake designer who similarly didn’t want to provide his services for same sex weddings on religious grounds.
This is a free speech podcast so the focus of this conversation, as I said, is on ADF’s free speech work, but we also discuss some of ADF’s litigation tactics and I asked Kristen to respond to some criticisms of those tactics and recent allegations that ADF’s cases are fake. In fact, between when Kristen and I originally recorded this conversation in FIRE’s DC office and when we planned to publish it, The Washington Post and the New Yorker both published big articles featuring criticisms of ADF’s approach.
So, I didn’t want to publish this show without first addressing those articles. So, at the end of the episode, we feature a short follow-up conversation segment with Kristen in which she responds to the articles, namely, again, the articles’ assertions that the cases are, perhaps, fake. So, hang on until the end to see Kristen address those articles and now without further ado, let’s get on with the show. Okay, Kristen Waggoner, welcome to the show.
Kristen Waggoner: Thanks for having me.
Nico Perrino: So, you are the Alliance Defending Freedom’s President and General Counsel, correct?
Kristen Waggoner: And CEO.
Nico Perrino: And CEO.
Kristen Waggoner: Too many titles. I’m hoping to shed some of those at some point, but.
Nico Perrino: I’ve never actually asked FIRE’s president and CEO, Greg Lukianoff, what the distinction is between president and CEO.
Kristen Waggoner: Yeah.
Nico Perrino: You know, I know when you talk about organizations like the ACLU, for example, they have the Executive Director who’s in charge of day to day management and then you have the President who’s essentially the Chairman or the Chairwoman of the Board, right? So, is it kind of like a figurehead and a day to day manager role? Is that the delineation between the two?
Kristen Waggoner: Not really. I mean, our – we’re structured a little differently in that, for example, the President/CEO isn’t on the Board.
Nico Perrino: Oh, okay.
Kristen Waggoner: There is a Board Chair. In terms of the role, President and CEO, I tend to think of it as President is often fundraising, external, ministry/friend oriented whereas CEO is day to day. And then General Counsel for us is something a little different than what you would think of in most nonprofit or even for profits. It really is just the sort of the lawyer that is in some ways serving the ministry or the corporation and giving that advice, but also for us, it’s been seen as sort of the top lawyer that’s gonna make the final calls. But I’m hoping to shed that General Counsel here very soon with the new Chief Legal Officer that we have.
Nico Perrino: There you go. Well, you have a lot on your plate. I was just looking at your bio and you have 400 ADF team members.
Kristen Waggoner: Over that, yeah.
Nico Perrino: Seven global offices. 4700 network attorneys and you provide legal resources to 4,000 churches and ministries so you’ve got quite a bit going on. I wanna – and you also, you know, as General Counsel, argue some of ADF’s biggest cases, right? And you guys have won 15 cases at the Supreme Court. You were involved most recently, right, in the 303 Creative v. Elenis case, which I wanna talk about on this podcast.
Kristen Waggoner: Okay.
Nico Perrino: So, you know, how do you kind of balance all that?
Kristen Waggoner: Well, I think in terms of the arguments, we have 15 wins and I’ve been able to be a part of 14 of them in one way or another and it’s just been such a privilege, but nothing I expected necessarily when I joined ADF. I mean, it just feels like the issues that we’re involved in ramped up so quickly so I came out of private practice after about 16 years and when I joined, I mean, it just immediately escalated in terms of issues. So, I’ve argued three since I’ve been here and I don’t think I’ll argue another one for a while. We have plenty of other lawyers that will do a wonderful job and I want to ensure that they have the opportunity. And I kinda have my hands full right now in the CEO role.
Nico Perrino: Yeah, I’m wondering, what’s your path to ADF? Like where’d you grow up, what’d you think you were gonna do when you were in school and how’d you get here?
Kristen Waggoner: I’ve always thought I’d be a lawyer. So, when I was a young girl, it’s kind of ironic when I look back on it and just create such respect for my father because I grew up in a very small town. We didn’t have any college graduates in our family other than my dad. He was an educator. I grew up in a Christian family, very, very conservative and so it would be, I think, at that time even unusual to see or to think of a woman, perhaps, going into law and that season in the ‘80s in kind of the areas where I was growing up.
And yet, my dad was just convicted that I had a vocational calling of my life and just pounded that into me in terms of you need to figure out what it is. You’ve got giftings, you’ve got skills, and so from about the time I was 12 on, I knew that I wanted to practice law.
Nico Perrino: But did you think you would be practicing this sort of law?
Kristen Waggoner: I did, actually.
Nico Perrino: Really?
Kristen Waggoner: Yes, which it’s just –
Nico Perrino: Not doing estate planning or...?
Kristen Waggoner: No, no desire for that. But when I was 12, I really did feel called into defending religious freedom, defending free speech, churches, religious organizations and that’s just what I pursued from that time on. A lot of bumps, a lot of turns in the road. It didn’t go just as I’ve expected it. I figured I would be at a public interest firm like ADF from the get go and that’s just not the hand I was dealt. And now looking back, I see why. I’m grateful for that time of private practice that I had.
Nico Perrino: What’d you do in private practice? The same sort of work?
Kristen Waggoner: Kinda sorta. That’s not a very fancy way of saying it but it’s interesting how it played out because my first case that I had in private practice at a firm was one involving religious freedom. It was a Bible vocational pastor who essentially met with a young man who was troubled and in a moment of crisis, his young son was in the hospital, they thought it was shaken baby syndrome and the state was trying to compel the pastor to reveal what those conversations had been between that father.
Nico Perrino: Wow.
Kristen Waggoner: So, it was the penitent privilege that was at stake and that was the first case I had and the reason I got put on it right away was to help with the briefs just because I had clerked at the Washington Supreme Court and that’s where it was heading.
Nico Perrino: Gotcha. The penitent privilege there are just a few professions, vocations in the world where you get that sort of privilege, right?
Kristen Waggoner: Right.
Nico Perrino: It’s lawyers, priests, clergy...?
Kristen Waggoner: Washington State wanted to apply it to some faiths but not others.
Nico Perrino: Really? What’s the justification for that?
Kristen Waggoner: Well, they suggested that, you know, sort of the protestant faiths didn’t take it essentially as a sacrament of confession, even though they believed it was a confidential setting and spiritual counseling was a part of the priest’s duty or the pastor’s duty to receive that in counsel, that essentially if it wasn’t a part of the sacrament like the Catholic church confession is, it just didn’t meet the standard for the priest penitent privilege.
Nico Perrino: Oh wow.
Kristen Waggoner: And thankfully, the Washington Supreme Court rejected that. I don’t know that they would today, but they did back, I think it was early, late ‘90s that that went out.
Nico Perrino: You talk about private practice and then coming over and doing the public interest work that you do at ADF. Now, do you find it hard to build out your team of 400 and however many attorneys you have because the sort of work that you guys do and, in fact, the sort of work that we do, First Amendment work, often defending people who don’t have a ton of money and can’t defend themselves, particularly when you’re talking about political speech or in your case, perhaps, representing a campus preacher who’s gone campus to campus and read the Gospel.
Since there’s not a lot of money in it, there’s not a lot of private practices that do that work, right? And so, often when we get attorneys aboard, we’re having to spend a lot of time, you know, teaching them or mentoring them, I should say, on that work. Have you had that, those issues?
Kristen Waggoner: We have. I think one of the things before we move off of my experience in private practice that was helpful to me was I had a wide practice. Many of my clients were religious organizations but I mean, I’ve got the craziest stories, right?
Nico Perrino: Yeah.
Kristen Waggoner: I’ve got a lot of crazy stories dealing with employment issues, with volunteer issues, all of those things. And then, I practiced in commercial law as well. At our firm, for your first six years, you’re kind of thrown into the deep end of everything and about year four you started to say, okay I wanna go this direction or that direction. And that really helped prepare me, I think, helped develop judgment and the ability to say things on your feet and think through issues and that kind of thing.
But I also could do this other work involving free speech and religious freedom in part because ADF had a grant program – we still have that program – where if the case is aligned with the mission that we have, attorneys who are in private practice can apply for a grant in order to litigate their case and in some way have that be supplemented. So, I could go to my partners and I can say, you don’t have to take the 100% hit on this as pro bono. Instead, we’ll get $200.00 an hour or something like that.
So, that actually gave me some experience that I otherwise wouldn’t have had and we continue with that program. But I – you’re spot on right in terms of bringing in those who haven’t practiced in the area and the learning curve that exists, but I still think good judgment is critical.
Nico Perrino: Yeah, I mean there are transferrable skills.
Kristen Waggoner: Yeah.
Nico Perrino: Of course. But a lot of the First Amendment work that happens in private practice or corporate practice is related to media, for example, is doing reviews for news publications before they go to press or it’s, you know, reviewing for fair use on documentaries.
I made a documentary so I know how important that work can be and how much of it their can be in the film world and not a lot of it is our case today, for example, where we defended two animal rights activists who were handcuffed and kicked out of a public park for showing videos in that public park. Those are folks who often just don’t have the money to buy really expensive attorneys and see a case from start to completion which can often be years, if that, some cases like a decade.
Kristen Waggoner: Usually it’s years.
Nico Perrino: Yeah, right? The interesting thing about you all is that you have an international focus and mandate too. So, can you talk to me a little bit about that? I’ve always wondered how nonprofits manage a kind of organization with an international focus and international team members.
Kristen Waggoner: It’s great fun and I’m learning so much. So, this is my – I’m completing my first year as CEO and President. Prior to that, I was General Counsel but mainly my focus was on the U.S. legal side. I was responsible for all that was happening in the legislative and litigation component of the U.S. side. So, it’s been a great learning curve for me this year but also such a privilege to have a bird’s eye view of the international team. I think it presents a really unique sort of platform to look down and see how global censorship trends are playing out and we tend to think of our space as just our space, but yet when you look at what’s happening around the world, we’re so globalized that you start to pick up patterns.
And I’ve seen that in the international side and also just the work that we do, I mean, it’s not just about – and it’s important, you know, to ensure that speech isn’t shelved, that censorship doesn’t occur anywhere, but yet we’re seeing that whole cycle complete itself while people are literally facing the death penalty in other countries for things they’ve said under blasphemy laws and you can trace that back through the hate speech laws and I think through some of the efforts we’re seeing here in the U.S. where that’s gonna end up if we don’t stop it.
Nico Perrino: Well, you have one case that’s ongoing. I’m sorry to say I wasn’t familiar with until your team alerted me to it but it involves a Finnish parliament member whose name...
Kristen Waggoner: Päivi.
Nico Perrino: Päivi? You’ll have to forgive me, I didn’t know how to pronounce it. A Finnish parliament member who’s an outspoken Christian who came under investigation for tweeting a quote from the Book of Romans that upholds the Christian view of marriage as being between a man and a woman and she was brought up, it looks like, on three separate charges of incitement against a minority group and also the charges fall under chapter of Finnish law which criminalizes quote, “war crimes and crimes against humanity” and each charge of the three it sounds like can result in prison sentence of up to three years. So, can you talk to me about that case and where it stands now?
Kristen Waggoner: I can, yes. It actually, just a couple weeks ago, we had the appeal. Unlike in the system here in the U.S., you can be exonerated at the trial court level on criminal charges and the prosecutor in Finland can actually appeal that and you can have to go to trial over again at the appellant level.
Nico Perrino: You can still do that here in the United States where if you’re on campus and get charged with a [inaudible] [crosstalk] [00:15:35]
Kristen Waggoner: [Crosstalk] True, true, yeah that’s true.
Nico Perrino: But yeah, I noticed that. I was like, wait, okay she was acquitted in 2022 on all three charges but the prosecution is now appealing the non-guilty verdict.
Kristen Waggoner: It’s Orwellian. So, first of all, in terms of our model, ADF International, we continue to use that model when there are charges brought up in the nations themselves, we come in as the international experts, so think about international treaties that are in place, the European Convention of Human Rights, all of those laws provide protections for countries abroad. So, we bring the expertise to help those local attorneys like the attorney in Finland litigate those cases and apply those treaties in the right way and protect the rights of litigants. And then we also hire individuals in those countries, in certain countries as well, that can appear at the International Tribunals.
So, in Päivi’s case in Finland, we have an attorney that’s serving on the legal team in that case and has from the beginning, but the story is just shocking in that Päivi Räsänen is a member of the Finnish parliament. She has been for nearly 30 years. She was just re-elected in 2023. She served as the Minister of Interior for the government, she’s a doctor, a physician by trade, she’s a pastor’s wife, just a wonderful woman and has been in public life forever.
And so, what happened was in 2019, she tweeted out something that was directed towards her church because her church had said they were going to essentially sponsor the gay Pride parade and she said I don’t see how this aligns with my church’s beliefs and the Bible and then captured a picture of the verse in Romans. That caused the authorities to launch a full born investigation into every statement she’d ever made throughout her public life.
They went back to a 2004 pamphlet she had written on marriage and the sexual ethic, the biblical sexual ethic, was published by a Bishop as well. He was also charged in this case for just publishing the booklet. So, they charged her for the tweet, they charged her for the booklet that she wrote in 2004 which is seven years before this law was even put in place.
Nico Perrino: Wow.
Kristen Waggoner: And then, they charged her – they took a snippet from about one minute from a radio interview she did in 2019.
Nico Perrino: They went deep on her.
Kristen Waggoner: And I mean, you’re missing the whole context. Like in the radio interview, she talks about everyone’s of equal dignity, of equal – I mean, they just completely strip it out of context and had pursued her.
Nico Perrino: Is that something Finland has done in the past or is this kind of a new trend there where they’re applying these statutes against war crimes and crimes against humanity to, in this case, religious speakers?
Kristen Waggoner: It seems to be a new trend. I mean, Finland seems just as shocked initially when the press reports started coming out. There was skepticism towards Päivi in thinking something must really be crazy about what she was saying or something’s off here.
But as the facts came out in the trial, I think you’ve seen the media either shift to being neutral on it or to being strongly in favor of Päivi realizing that this is a very vague, very subjective law that the government is using to censor speech and really to put the biblical sexual ethic on trial. Like literally, these witnesses are being asked about Christian theology and told that in a standard is whether it was insulting for her to simply apply her faith in that context and to speak about it.
Nico Perrino: Do you represent clients who are not Christian?
Kristen Waggoner: Yes.
Nico Perrino: Most of your cases, I’m assuming, are Christian clients or speakers?
Kristen Waggoner: Most of them are because, you know, those are the type of inquiries that we get and we are a religious ministry. So, our team members all sign a statement of faith.
Nico Perrino: Okay.
Kristen Waggoner: But we do represent non-believers and we’ve got plenty of amicus briefs in other cases.
Nico Perrino: So, for our listeners – because we have listeners from across the political ideological or professional spectrum, what does it mean to be a ministry? It means you ascribe to a certain set of values?
Kristen Waggoner: Yes. So, we believe that everyone should have the right to be able to freely practice their faith and to speak freely, regardless of what their viewpoints are, which does mean that we’re gonna support cases where viewpoints are articulated that might not be consistent with our faith. But every team member when they join ADF, they sign a statement of faith that is essentially the Apostle’s Creed, which is just you’d think of Orthodox Christianity and those beliefs. So, we have a wide spread among our 450 team members. There are many in the Catholic faith, many of all kinds of Protestant denominations too.
Nico Perrino: Gotcha. I wanna talk about the trends we’re seeing in Europe. We saw, I think, was it last month that Denmark, the Danish government which is long opposed blasphemy laws state that they plan to criminalize Quran burnings in that country and the Ministry of Foreign Affairs announced that it quote, “Intends to criminalize improper treatment of objects of significant religious importance to a religious community.” This comes in large part because of a spike in Quran burnings and protestations from this 57 member states of the organization of Islamic Cooperation which, I believe, was founded in the wake of the Salman Rushdie Satanic Verses controversy of 1988.
But it’s significant to me because Denmark has long had a proud tradition of opposing these sorts of blasphemy laws. In 2017, the then Danish Prime Minister proclaimed, “I’m proud and happy that we live in a country where we’ve abolished the blasphemy provision and where you’re allowed to be critical even in satire cartoons of religious symbols.” But then it was in August that this same person said that they were gonna do about face on it and plurality of Danes, in fact, support the bill.
There hasn’t been a blasphemy law in Denmark since 1946 and I think it’s not just Denmark, it’s also Sweden that’s looking at doing this and this would apply not just for the Quran, but also to the Bible. So, I’m wondering how as a ministry, you know, you feel about having a sacred text like the Bible or the Quran burned and then have that burning be criminalized under state statute.
Kristen Waggoner: I don’t think it’s ever appropriate, no matter what faith you are of, to celebrate the burning of what others consider to be sacred, a sacred text. I just don’t think it’s appropriate and it’s not something that we would celebrate. On the other hand, we believe in free speech and so blasphemy laws, we’ve seen used by governments to suppress all kinds of speech and we believe in, I think, our U.S. Constitution, as well as international law confirms that again and again that free speech is a fundamental right and that means it extends to people you agree with and people you don’t.
Nico Perrino: Mm-hmm. There’s – I’ve talked to some people who are kind of working on this issue in Europe and one of the challenges that they’re having is there doesn’t seem to be any support from Americans or American institutions or American politicians in opposing the law that they’re trying to pass, whereas previously there might have been. It’s been – although it’s starting to pick up a little bit and there is, you know, there’s no real hope that the European Court of Human Rights will do much either if this case is brought there.
The Court has held, as my colleague, Jacob Mchangama, just pointed out the gratuitously offensive speech that’s directed at religious speakers can be restricted, for example, in 2018. I believe the Court decided that Austria didn’t violate the Human Rights Conventions when someone said that the Prophet Muhammed was a pedophile since according to some interpretations of Islam, Muhammed consummated his marriage with his wife who was nine, so that wouldn’t make it pedophilia, I guess is the argument as that goes. But yeah, it’s a core belief if you believe in freedom of expression, then you must believe that even if it’s offensive or strikes at your core beliefs.
Kristen Waggoner: Absolutely and I think in terms of the stances that we’ve taken, we would be opposing those laws. There’s 79 countries that have blasphemy laws and a number of them that have what they call hate speech laws that fall under the blasphemy, which is the same kind. It’s rooted in the same premise and it’s just so... among other things, among the – in addition to the violation of human rights, you can’t have self-government, you can’t have democracy. If you hand the keys of the kingdom over to the state and what can and can’t be said.
So, it’s just, I think for so many reasons presents dangers and, you know, Paul Coleman who’s our Executive Director of ADF International continues to beat that drum in my own head on we’re supporting a case in Nigeria right now where there’s a death penalty for a guy that he was brought before Sharia court and had some lyrics in his song. He’s Muslim and he’s literally facing the death penalty for it. Mexico right now –
Nico Perrino: For simply –
Kristen Waggoner: For those lyrics.
Nico Perrino: For lyrics. Wow.
Kristen Waggoner: Yeah. For the lyrics. And we’re before the Supreme Court of Nigeria.
Nico Perrino: Is Nigeria ruled under Sharia law? I mean, what’s the..?
Kristen Waggoner: That’d be a good question for Paul –
Nico Perrino: Yeah.
Kristen Waggoner: – But if we don’t prevail at the Supreme Court of Nigeria, he’s done. This penalty is going to be in place.
Nico Perrino: Quite literally, yeah.
Kristen Waggoner: And it’s just shocking. Mexico’s having the same – I don’t know if you’ve tracked that, but.
Nico Perrino: No.
Kristen Waggoner: We have two cases in Mexico right now and they’re going after high profile individuals. So, Nigeria was the musician that was fairly well known, but then in Mexico, it’s a Congressman and a former Congressman and they have been convicted of political gender violence and have to register now, are supposed to issue a public apology simply because they took issue with the fact that transgender ideology doesn’t reflect biological realities.
Nico Perrino: Let’s talk a little bit about some of your Supreme Court cases. As I had mentioned previously, you’ve won 15 cases at the Supreme Court. That’s a lot. Congratulations. When was ADF founded?
Kristen Waggoner: We were founded in ’94, so the way we think of that stat is we have the privilege in playing a role in over 70 Supreme Court wins since 1994, but the 15 has been in the last 12 years where we’ve actually represented parties in the case.
Nico Perrino: So, among your cases are Masterpiece Cake Shop, right, involving the Christian baker who did not want to bake a cake for a same sex wedding. A custom wedding cake. One that we took a particular interest in, forgive me, it’s another one of those names, I think you even know where I’m going with this.
Kristen Waggoner: Uzuegbunam.
Nico Perrino: Uzuegbunam, yep, which you won at the Supreme Court involving a campus preacher, right? And most recently, 303 Creative, v. Elenis. Let’s start talking about 303 Creative v. Elenis. Tell us the story of Lorie.
Kristen Waggoner: Sure. Well, Lorie Smith, she grew up with her mom having a wedding boutique shop so she grew up in the shop designing all kinds of things for her.
Nico Perrino: This is in Colorado?
Kristen Waggoner: In Colorado, yes. She’s a native of Colorado and always wanted to open her own design store. She’s a website and a graphic designer. After college and she went into the corporate world, into the government world doing graphic design, website design, and realized that she really just couldn’t pursue the projects that she loved. So, she started her own business in 2012 and focusing on all kinds of projects but wanting to pursue things that she really believed in. And so, it was in 2016 she had kind of been up for about three and a half years, wanted to go into wedding websites.
If you’ve gotten married in the last 10 years, I think we all know that that’s a pretty hot business to be in and that there’s a lot that you can do with it creatively. And it was in a season where her beliefs about marriage were being challenged in the public square, so she’s a Christian, she believes marriage is between a man and a woman. She hasn’t always had that belief, but once she came to Christ, she changed her views on marriage.
And at the same time, she’s thinking about opening this new segment of her business, Jack Phillips, of Masterpiece Cake Shop, is being relentlessly pursued by Colorado officials and his case at that point hadn’t gone up to the Supreme Court and been accepted by the Supreme Court. So, the outcome wasn’t known. She didn’t know. She went to her pastor and said to her pastor, I’m thinking of doing this, I’m feeling called into this, I wanna be able to tell stories that promote my faith’s view of marriage. And her pastor said, I think you should hold up and contact Alliance Defending Freedom before you jump into that because you could get into trouble.
Nico Perrino: And get into trouble how? I mean, what existed in Colorado that she could be prosecuted under?
Kristen Waggoner: There – a number of states have public accommodation laws that include provisions that deal with sexual orientation and gender identity and Colorado was one of those states. And Colorado had essentially said, in Jack Phillips’ case –
Nico Perrino: Yeah.
Kristen Waggoner: – That if he declined to create a custom wedding cake celebrating a same sex wedding that he would be breaking the law and he would be subject to penalties. This played out at the commission level. The administrative level first in Jack’s case and he basically lost a significant portion of his business. He was told that if he didn’t design custom same sex wedding cakes, he couldn’t design other wedding cakes. And since that was something that was a big part of his business, it took a huge toll on his family.
He lost six of his ten employees as a result. He also was ordered to essentially undergo re-education training. His employees said he was wrong to operate his business consistent with his faith and chillingly was required to report to the commission on a quarterly basis every decision where he declined to create a custom cake so that they could then look at whether that broke the law.
Nico Perrino: That Masterpiece Cake, Masterpiece Cake Shop case, what year was that decided?
Kristen Waggoner: It was 2018 that the Supreme Court ruled.
Nico Perrino: And they didn’t rule on the speech issue, correct?
Kristen Waggoner: Correct. They ruled on the free exercise issue.
Nico Perrino: So, that’s why we get 303 Creative because it more squarely focused on the question of whether these sort of bespoke wedding websites are speech, right? And if they’re speech, they’re subject to a higher level – these prohibitions like the Public Accommodations Law on editorial discussion for lack of a better word would face a higher level of scrutiny, correct?
Kristen Waggoner: Yes. And one of the reasons that the Court – well, there were a number of reasons, probably. I can speculate, but the Court didn’t reach the free speech issue at that point but one of them was they didn’t need to. In Jack’s case, when he went before that commission, in the hearing itself they openly compared his religious beliefs to those religious beliefs who were held by slave owners and perpetrators of the Holocaust.
In addition to that, they had a double standard that they had applied, so another gentleman had gone to other cake artists and asked for cake designs that essentially were derogatory, had derogatory messages towards same sex marriage and those cake designers refused to design those cakes. And the commission ruled that they were within their First Amendment rights to say no but that Jack was not. And so, the Court said you can’t apply a double standard and you can’t have religious hostility towards people of faith simply because you disagree with their view.
So, it kept the free speech arguments intact, but didn’t address them. But I will say that three weeks later in the NIFLA decision in that same term, which was also our case, the Court did address those issues and started to lay the groundwork for the eventual 303 Creative ruling.
Nico Perrino: Okay, so in the Masterpiece Cake Shop case, you do have examples of viewpoint discrimination, as you just mentioned, right? And you also have examples of religious hostility, but it seems like the viewpoint discrimination question would be a question that would strike at the core of the free speech clause of the First Amendment, but they only ruled on the sort of hostility.
Kristen Waggoner: Well, they also ruled on the double standard but they applied it under the free exercise clause.
Nico Perrino: Oh, okay. Yeah, that’s what I’m trying to get at.
Kristen Waggoner: So, you can’t have a double standard under the free exercise clause either and so that meant that they didn’t necessarily need to decide... can cakes be speech? They didn’t need to take that question on because instead they were able to protect Jack Phillips and rule in his favor without addressing whether in some instances cakes can be speech. Now, Justice Kennedy wrote the majority decision in Masterpiece and says, you know, to his surprise, in some instances, speech on these issues is going to be protected and he didn’t say cakes can’t be speech.
Nico Perrino: Yeah. Wasn’t there a brief from cake bakers and cake designers who said, yeah, cakes are speech, we’re artists?
Kristen Waggoner: With pictures. With pictures.
Nico Perrino: And there are a bunch of shows now, right? Cake Boss and all these other ones which are all about these cake artists.
Kristen Waggoner: There’s no way you can say that cakes can’t be speech. I think you can say that not all cakes are speech. That’s certainly true.
Nico Perrino: So, let’s assume for all intents and purposes that cakes are speech. It sounds like you and I might agree on that that wedding websites, if they’re bespoke, if they’re customized to a particular client are speech, why should a public accommodation law that is a law that seeks to ensure that anyone who’s going out into a marketplace can be served regardless of their identity not apply in those contexts where you have customized speech for clients?
Kristen Waggoner: Well, I would even take issue with the premise of the question –
Nico Perrino: Sure.
Kristen Waggoner: – Because I think the public accommodations laws do apply in those instances but the Court’s ruling, first of all, in both Jack’s case and in Lorie Smith’s, 303 Creative’s, the Court noted that these clients serve everyone. They serve whoever walks in their shops and they’re making the decisions based on what the message is that’s being requested, not based on the person that’s requesting it. So, in that way, they’re not running afoul of public accommodations laws because they’re focusing on the message and that’s been the test in our jurisprudence for many, many years.
I mean, many years we’ve said if the government is trying to regulate speech, is it affecting the speaker’s message and that’s one of the ways you can sort of work through protectoral objections, right? You can also look as the Court did in Hurley and in other cases and again in 303 to say well, is this speaker otherwise serving people of the protective class? Would they do it in other context with other messages? And if the answer’s yes, you know that they’re not denying service because of a protected characteristic, which is an essential requirement under these public accommodations laws.
Nico Perrino: Yeah, I think critics would say though that the only people who are having same sex weddings are same sex couples. So, it’s like intimately tied with this protected class, right?
Kristen Waggoner: Well, that might be true but I would suggest that the only people that are probably requesting – I don’t think it’s true but taking the premise is true. You could also say that the only people that would ask for a sign that says “God is dead” are atheists or that Islam is the only religion, they’re probably Muslim. Does that mean that the Jewish adherent should have to create that message that violates their conscience and hopefully you and I would agree that the answer’s no to that.
But I would also say, you can think of many other contexts and even Justice Barrett raised hypotheticals during the oral argument of situations where others might request these messages and there would be an objection or other messages that Lorie would object to. Think about a wedding planner as an example.
Nico Perrino: Yeah, yeah. No, I’m just thinking about all the different scenarios where it’s very clear that a service provider of some sort has editorial discretion because the services that they provide are expressive in some way and taking on certain clients is a reflection upon them and their identity and the speech they’re gonna create. So, I just – I’m trying to understand what past cases would have left this as an open question because I’m sure you deal with this with like singer/songwriters, with playwrights, with speech writers, with advertising agencies.
It seems it might come up all the time but I guess maybe not in the context of speech that’s so closely tied with a class that would be protected under public accommodation law? What makes it so novel? It just doesn’t seem that novel to me.
Kristen Waggoner: I don’t think it’s novel in the sense there’s so much precedent on it that the rules are clear, it’s just in this cultural moment. Activists don’t wanna except that principle here so they’re challenging it. They’re trying to change what the law is. But another example you can think of is think of the play of Hamilton. I mean, if we took the position that every time there was an overlap between a protected characteristic and speech, the protected characteristic won, then you wouldn’t have free speech rights, you wouldn’t have Hamilton as an example.
Nico Perrino: Yeah.
Kristen Waggoner: And so – and I think we need to realize under these public accommodation laws, they’re not even recognizable compared to what they were when they were adopted. Many of them have over a dozen protected characteristics now. Some have up to 20 and there were at least 19 jurisdictions, at least when I argued the case in December of last year. 19 jurisdictions that even protect political ideology and political belief.
Nico Perrino: That one confuses me.
Kristen Waggoner: And they apply to like everybody. The soccer mom who’s got the Etsy account, she’s a public accommodation under these laws.
Nico Perrino: Yeah, the political affiliation one confuses me because, you know, I think we have that sort of protection where we’re sitting right now in D.C., although I could be wrong about that.
Kristen Waggoner: No, you’re right.
Nico Perrino: So, you have a democratic oppo research firm, would they have to take a republican client if a republican client came to them under, you know, at least the interpretation of that law?
Kristen Waggoner: Yes. Ostensibly, yes. Yes.
Nico Perrino: Does it ever get tried? I mean – does it ever get like tried? I mean, I just can’t believe anyone would actually – maybe under the plain language of it, that would apply, but does anyone ever actually... D.C. wouldn’t work if that applied.
Kristen Waggoner: I know. I know, think about a speech writer. Think about all the different ways that would play out but that is the law and that is what Colorado’s arguing for and it’s what a number of states argued for in the amicus brief. We had 20 states that were on our side and I think they had some nearly 20 on their side that were arguing essentially the state has unfettered authority to compel speech in these areas. And they went through a number of – it felt like a shotgun approach to be honest. It was like, yes, we can do whatever we want, compel whatever speech we want because we’re just gonna relabel speech as conduct. So, that was their first argument is any –
Nico Perrino: Oh, that’s what they all do.
Kristen Waggoner: Yeah. Anything –
Nico Perrino: Any case involving free speech. It’s not speech, it’s conduct.
Kristen Waggoner: It’s not speech, it’s conduct. So, we sort of boo hoo that one because that is the argument which they always make which means that the Supreme Court’s rejected it many times.
Nico Perrino: Yeah.
Kristen Waggoner: And the next one was essentially, well okay, we might not be able to do that. If we can’t do that then if it’s speech that’s on the same subject, we can compel it. So, think about that in the marriage context which is Lorie Smith’s context. So, if you choose to speak in favor of opposite sex marriage, then because you broach the topic, you have to speak favorably on all other views on marriage. So, it’s essentially equivalent speech is what they called it.
And we could talk about that. And then there was the same word speech. They said, well, if it’s the same words, we could at least compel the same words even if the context changes. And that goes to your songwriter and performing artists, whether they have – you know, can you compel them to sing at the Republican National Convention because they performed at the Democrat one?
Nico Perrino: Yeah.
Kristen Waggoner: I would think not.
Nico Perrino: After the case was decided this past summer there... was it The New Republic came out with an article that said that this was essentially a fake case and you would probably be able to relay the facts or their argument better than I could, but essentially there was a piece of evidence that was introduced in the case after the case was filed where a gentleman, I believe, was said to have filed a request or submitted a request to Lorie to design a same sex wedding cake.
What is it, seven years later after the case handed down, he said he had never done that despite the fact that the IP address associated with that submission was kind of in the area of where he was living at the time. In any case, people said after the case was decided that the case shouldn’t have standing to begin with. What’s your response to that?
Kristen Waggoner: Right. It was incredibly frustrating. I have to say, since the 303 Creative case was decided, I don’t think that we have seen in all the other cases the type of response we have seen from activist journalists and the type of lies. I mean, they were calling for disbarment, for criminal penalties against the lawyers that litigated it simply to undermine the legitimacy of the Supreme Court. If you know anything about pre-enforcement challenges which is what Lorie’s case was, you don’t need a request, first of all.
Nico Perrino: Yeah, can you explain what a pre-enforcement challenge is?
Kristen Waggoner: So, pre-enforcement challenge is a hallmark of civil rights litigation and the reason is you don’t have to violate the law and put yourself in jeopardy in order to ask the Court to rule that a law’s unconstitutional. And that’s particularly true in the area of free speech because you can think of all kinds of laws that could and have been passed that would chill speech. That would cost someone to not speak because they’re afraid of being punished and we have cases right now in other jurisdictions outside of Colorado where those artists are facing jail time. So, jail time is even a potential penalty in situations like Lorie’s.
Nico Perrino: And so is that the same as a facial challenge then?
Kristen Waggoner: No. It was an as applied challenge. So, a facial challenge would be, Court, we want you to strike down the public accommodation law in total.
Nico Perrino: Okay.
Kristen Waggoner: And as applied challenge is as the government is applying this law in this situation, it is unconstitutional. So, public accommodation laws in Colorado and everywhere else continue to apply to millions of transactions and it’s peacefully co-existed with free speech rights for years and years without a problem. Where the problem occurs is when the state’s trying to compel speech and that makes that a very different situation.
Nico Perrino: So, I think that’s an important point you just drew out is that it sounds like you’re not trying to strike down the law at all.
Kristen Waggoner: No.
Nico Perrino: Just the fact – the way that Colorado interpreted it as applied to Lorie who had asked Colorado, right, if it would be applied to her in this particular circumstances and they said yes.
Kristen Waggoner: Yes. For seven years they said yes. So, you know, under the standing requirements in the Court, you need to demonstrate that there’s a credible threat of enforcement against you. That was the critical inquiry in the case and certainly, Lorie easily met that test of a credible threat of enforcement when they are the most aggressive jurisdiction in the United States that has been going after Jack Phillips. And noteworthy, they didn’t just go after him once, they went after him twice. In addition, they continue to brief in their legal briefings that they would enforce the law against Lorie and that they would prosecute her should she violate the law and they said that in a number of different ways.
Nico Perrino: And you’ve gestured at this already and maybe set it out explicitly, but Lorie was willing to serve same sex couples?
Kristen Waggoner: She has gay clients.
Nico Perrino: Yeah, but not with a customized wedding website.
Kristen Waggoner: Right. It’s the message.
Nico Perrino: It’s the –
Kristen Waggoner: So, you know, she has clients who identify as LGBT, it’s about the message. She has clients who identify as Christian. She’s gonna decline their messages too. It’s all about what she’s being asked to say. But I don’t want to leave The New Republic issue without saying as well that the request that came into her from this gentleman named Stuart, with the name, address, phone number, came in the day after she filed the lawsuit.
Nico Perrino: Yeah.
Kristen Waggoner: And she – in terms of the Court relying on it, of all the judges, the 12 judges that looked at the case, none of them cited the request as being the basis for having standing. It’s not mentioned in the Supreme Court decision and it wasn’t necessary for standing. And it’s important to realize that if Lorie – Lorie’s been criticized for not calling that person that came in through her website. She’s been criticized for not calling him to try to determine if he really meant what he said. If it really was a request. Jack Phillips took a troll request over the phone and that’s the request that Colorado then pursued and brought charges against him on. So, she would have put herself in legal jeopardy –
Nico Perrino: Yeah.
Kristen Waggoner: – Had she really tried to get to the bottom of whether this guy was gonna have a real wedding or he was just trying to –
Nico Perrino: So, that puts you in a can’t win situation.
Kristen Waggoner: Yeah.
Nico Perrino: You know, if you call then you get prosecuted. If you don’t call, then people say you have a fake case.
Kristen Waggoner: Right.
Nico Perrino: I think one thing that people might say is that like are people really gonna associate this customized wedding website with the views of Lorie, you know? Or you can even take a hypothetical, someone who’s ghostwriting a book for someone else. The ghost in ghostwriting means that they are not, at least publicly, known to be associated with the words that they created. Do those distinctions matter in these sorts of cases or not?
Kristen Waggoner: They don’t. And I love that you brought up ghostwriter because that’s like my first go-to hypothetical in that kind of a question is should a ghostwriter be required to have to write something that violates their core convictions? The whole point of the First Amendment the Court has said is to prevent the intrusion of the mind and the spirit. To force you not to have to say something in one breath that you would deny in the next. It’s that you don’t have to betray your convictions, that no individual does. So, it doesn’t really matter whether attribution would be in play.
Think about the seminal cases of like Barnett, right? Everyone knows of Barnett, the children that had to do the flag salute. Well, no one’s gonna think that that was something they made up. They know the flag salute. Or think of Wooley and the Mainers who drove around with the license plate and the Court said it doesn’t matter that everyone knows they’re required by law to ride around with a license plate, they can’t be forced to have to carry a message that violates their core convictions.
Nico Perrino: Before we move on from 303 Creative, I wanted to just quickly return to the point that I started with about the fake case argument which is this is something that happens all the time in public interest litigation, right? These sort of pre-enforcement challenges. And in some cases it even goes beyond that where public interest firms will set up test cases, in fact, fake cases – there’s this great radio program called Radio Lab which is produced out of WNYC in New York City that did a whole – that has a Supreme Court program, I forgot what the name of it is. More Perfect.
That’s the name of the program. And they did a whole episode about test cases and how test cases have been fodder for the Supreme Court going back over 100 years. It talks about Plessey v. Ferguson starting out as a test case, I believe. So, can you talk about that tradition in the public interest context as well because those seem more fake than what seems to have been alleged to have been fake here, but they’ve been a tool of civil rights litigators for decades.
Kristen Waggoner: Absolutely. I mean, and in Lorie’s case and in the other cases that are pending right now involving these issues, there have been threats of enforcement and in many pre-enforcement challenges, it’s not nearly as clear as what we have in these situations. Nor the penalty’s even as draconious as some of these, you know, photographers are facing, as I said, six figure fines and jail time. But it is a hallmark of the civil rights litigation. It’s used by the left constantly. In fact, I read a stat that if you look back, I think it’s all the way back to 1900 or so, every decade the Court had at least one pre-enforcement challenge and in something like the last 15 years or 10 years they’ve had more than a dozen.
Nico Perrino: Yeah, sure.
Kristen Waggoner: So, this is so common, but I think we’re living in a moment where some are desperate to undermine the legitimacy of the Supreme Court and they’re looking for anything they can, even if it’s misrepresentation.
Nico Perrino: So, you have a bit of an incident back in March of 2022 at Yale that obviously captured our attention here at FIRE. You were invited to speak about Uzuegbunam there with Monica Miller who is an advocate with the American Humanist Association. It sounds like you might not agree with her on much, but you agreed with her on this case. So, can you talk a little bit about what transpired on that day in March of 2022?
Kristen Waggoner: Yeah, I never – I never really expected what happened.
Nico Perrino: Nobody ever does. I have to say that. With the people we end up helping, they’re like, you know, I’ve been seeing this kind of like cancel culture thing happen or this free speech on campus thing happen but I never expected it would get to me. Eliot Shapiro of Georgetown always said that.
Kristen Waggoner: He was just before me in terms of he had something and it was California campus, I think.
Nico Perrino: Oh, that was Hastings, right?
Kristen Waggoner: Yeah, yeah, yeah. So, he was just like a few weeks, I think, before the Yale incident. But still, I just didn’t – and mine was a little bit different. I was invited by the student chapter of the Federalist Society. We were going to speak on the importance of free speech actually and Uzuegbunam was a case that dealt with a student at a public college who wanted to share his faith and there were speech codes, speech zones, the need for permit, they just gave him the runaround. Not once but twice.
Nico Perrino: Did he go to different campuses because I think I described him as like a campus preacher but I’m wrong about that. Correct the record.
Kristen Waggoner: No. He did not go to different campuses. He was a student at Georgia Gwinnett College. He wanted to share his faith. He stood outside in one of the buildings and was talking to those who wanted to talk with him and handing them some literature and was told that Georgia Gwinnett had speech zone which occupied all of less than 1% of the campus. So, a place that he had to speak in.
Nico Perrino: Yeah.
Kristen Waggoner: You’re very familiar with that. And he had to get a permit that he could only do it at certain times of the week. I think it was less than 10% of the week he could freely share his faith on campus. So, he actually jumped through all those hoops and got the permit, got his time, went out, and the second time they shut him down again. Threatened him with discipline, possible expulsion if he continued to share his message because someone who was listening to it was offended by it ala Finland.
Nico Perrino: Yeah, right?
Kristen Waggoner: That’s where you see those trends.
Nico Perrino: Yeah.
Kristen Waggoner: And so, in the end, the case that went before the Supreme Court was whether if you’re civil rights are violated by the government, do you have to put a price tag on that? Do you have to prove economic harm in the amount of economic harm in order to demonstrate that your rights have been violated in order to win your case? Or instead, can you do what Georgia did which was they changed their unconstitutional policy for students in the future. They waited essentially for the ruling in the case until Chike Uzuegbunam graduated –
Nico Perrino: Yeah.
Kristen Waggoner: – So that they could move the case and never have a decision on the merits. And we had filed –
Nico Perrino: This happens all the time, right?
Kristen Waggoner: Yes.
Nico Perrino: Because students are often in college for four years and they just kind of wait them out.
Kristen Waggoner: Yes. That’s exactly what they do and FIRE was involved, ACLU was involved, there were a number of cross-ideological groups that were involved recognizing that it wasn’t even just applying speech. Think about search and seizure for exercise violations in prison it happens a lot. And so, we were able to prevail on that case but the goal on campus was to demonstrate how ideological components can come together on an issue and recognize that free speech is something that we all value and should support. And Monica was amazing that day and I can certainly share what happened if you wanna go there now in terms of the response.
Nico Perrino: Well, well, I mean –
Kristen Waggoner: To such a controversial topic.
Nico Perrino: Did you have much time to speak? How – so there were 120 or so students who were attending this discussion and you were shouted down, the moderator was shouted down, there were chants, there were pounds on classroom walls, some report the floor had shook. And the event was unable to proceed, I believe you were escorted, along with Monica, by police from the building? So, how far did you get into the event before this all happened and what prompted it happening?
Kristen Waggoner: Well, I –
Nico Perrino: I’m assuming it was you?
Kristen Waggoner: I hadn’t said anything. I don’t wanna speak for Monica [crosstalk] [00:54:22] but I have spoken with Monica.
Nico Perrino: [Inaudible] [Crosstalk]
Kristen Waggoner: And I would say, I mean, they were coming after her before the event even started as well as me. So, before the event even started, there were things being yelled at us, criticizing her for platforming me and just really kind of going after her for that. Going after the professor who’s long time professor at Yale, dearly loved, going after her for sharing the platform with me.
Nico Perrino: Yeah.
Kristen Waggoner: And then even the students yelling at the conservative students. And I can say conservative students because the room was not mixed. You could see in one section there was a small group of students and the rest of the room was filled with signs, all kinds of students wearing kinds of things that would express different things and a lot of jeering and things that was going on. So, before I even took the podium, it started. And there’s a little video which you may have seen.
Nico Perrino: Yeah. I remember we had a more difficulty with this incident than with some other ones and kind of piecing together the whole scope of what happened.
Kristen Waggoner: Well, I mean, those who would be on the left, many of them thought, I think, I deserved it and they couldn’t believe that it had happened the way that it did and the video was nothing compared to what happened. I mean, just, that was the very beginning of it. It got much, much worse. But I’m thankful to a number of people who took the time to really dig into it. I didn’t say anything to anyone after. I wasn’t – I just was like, wow that was something.
Nico Perrino: Yeah.
Kristen Waggoner: And next thing I knew, it was actually the Yale student paper that reached out for comment because they were complaining that they felt the police shouldn’t have been called and that quickly turned on them because as others started to look into it –
Nico Perrino: Who was complaining, the Yale paper?
Kristen Waggoner: Yeah.
Nico Perrino: Oh.
Kristen Waggoner: Well the students. The students that were protesting were the ones who felt unsafe because Yale had to call in outside police to protect us.
Nico Perrino: How’d you feel? I guess it doesn’t matter it’s all done.
Kristen Waggoner: I guess I feel it’s the first time that I ever – and the last time was literally, I mean I was shaking. It was something.
Nico Perrino: Yeah. Our president, Greg Lukianoff, is the one who filmed the incident in Yale’s courtyard featuring Nicholas Christakis back in 2015, right? And this sort of composure that Nicholas Christakis had as he was literally encircled by students yelling at him. Almost superhuman, right? I mean, you were in that case as well, walking into the Thunderdome and you don’t know what’s gonna happen. You don’t know what’s gonna happen but Yale didn’t do anything to try and get the students out of the room that were disrupting the event?
Kristen Waggoner: Nope. And there was an Assistant Dean in the room.
Nico Perrino: Yeah.
Kristen Waggoner: For the whole thing. I mean, it was so disturbing on so many levels. I just, I remember thinking during it, I may be the only person that has my views that they’ll interact with in a meaningful way and so I was intent to try to maintain my composure and also show kindness so that there was nothing that could be used later.
Nico Perrino: Like an excuse, yeah.
Kristen Waggoner: Yeah. And I really, I do feel compassion for, you know, some of the things that they were yelling and saying, you have to really come from a place of hurt –
Nico Perrino: Yeah.
Kristen Waggoner: – I think, to have that view.
Nico Perrino: Well, unfortunately, those sorts of incidents are not uncommon. You mentioned Eliot Shapiro went through something similar. He was shouted down. He just stood at the podium for I believe a very extended period of time and just didn’t say anything. Just allowed to shout their invectives at him, preventing him, of course, from speaking and delivering the talk he was to give and then you have just this year, Judge Duncan at Stanford.
And as you noted, sometimes saying things or getting sharp with them in response is what they’ll hang their hats on afterward to justify their actions and I don’t know if anything that they alleged Judge Duncan to have said were true or not but it doesn’t change the principle of course that you should not shut down an event or take it over and make it your own. Then you had Ann Coulter last year at Cornell and that situation was unique because it wasn’t a mob of students all shouting at the same time and kind of overwhelming the speech, it was one student stood up, played clown music, used a like blow horn or something, escorted out by police to Cornell’s credit.
And then another student would stand up. It was almost like playing Whack-A-Mole and then that student would get escorted out and then another student would stand up. So, they got creative with their tactics. How long are you gonna do that, escort everyone out for an extended period of time? And then we had at SUNY Albany this year as well, Ian Hayworth, the conservative commentator, who was set to give a speech about free speech on campus and students did a conga line in front of him, shouted things like, “This is what free speech looks like,” hint – it doesn’t.
And then you get absurd justifications for it, like Guy Benson was set to speak at Brown in 2018 and there was a petition prevent him from speaking and the justification was because he believes in Capitalism, he is a White Supremacist and Fascist. So, it’s like an expanding web of justifications to prevent folks.
Kristen Waggoner: Yeah. It’s hard to be on the right side that you’re supposed to be on when there’s just so many different issues that come into play and I think it was also really disturbing to see it happen with law students.
Nico Perrino: Yeah.
Kristen Waggoner: You know. Literally if you can’t engage with arguments and people that you don’t particularly care for? You’re not going to be a good lawyer and we’re not going to have a good justice system.
Nico Perrino: Don’t have a ton more time but I do wanna ask you about two more cases you have ongoing. I got an email from you this morning or from someone on your team this morning about Liam and his t-shirt that he wore to his middle school one day that said, “There are only two genders.” He had witnessed his school hold various Pride month or Pride-themed events and decided that he was going to wear this shirt that said there are only two genders to his school in Middleboro, Massachusetts. Staff pulled him out of class. Told him he had to either take his shirt off or be sent home from class.
He decided send me home and worked with you guys to file a lawsuit but you lost at the trial court level. I’m trying to understand – I hope you’ll help me understand how this is much different from Mary Beth Tinker’s black armband protest in the Vietnam War. You know, in that case, of course, the Court held that they could regulate substantial disruption but can a simple message on a piece of clothing justify asking one of the students to take off that piece of clothing? Unfortunately, I think we’ve seen a number of cases where it has, the Courts, and I’ve always kind of referred to that substantial disruption card up as a giant hole that you could drive a truck through.
But it opens the path to not only viewpoint discrimination but also hecklers because protesting students or administrators, all they need to do is get up in arms in order to kind of meet that substantial disruption test. So, I was wondering if you could talk a little bit about that case, what it means and what you’re hoping to get out of it?
Kristen Waggoner: Sure. Well, we’re hoping to get the right ruling which is that Liam has every right to wear a t-shirt to school on the subject of gender identity, just as the other students have the right and continue to have the right to wear t-shirt that states what their viewpoint is. And I think you’re spot on to say we see judges using the substantial disruption in ways that I don’t think it was intended and in ways that actually violate the High Court’s precedent. And so, we have a number of cases actually involving that standard now and trying to urge the Supreme Court to continue to make it clear to the lower courts – we have one case involving teachers right now –
Nico Perrino: Yeah, Grants Pass, right?
Kristen Waggoner: Yeah, yeah. That case where it wasn’t even a complaint, you know, filed by a student or a parent. There was no incidents of disruption but it was a school librarian that happened to see a post on social media and so how you define substantial disruption is critical.
Nico Perrino: And is that what the trial court relied in ruling against you in that case? I understand it’s getting appealed to the First Circuit.
Kristen Waggoner: It relied on several different bases in order to rule against us and all of them are being taken up. I think it’s such a clear case that we should be able to prevail on, but it’s also concerning to me that we have so many others that are still in play in other circuits too with that same issue. As I mentioned, the teachers with the Ninth Circuit, substantial disruption was a big core of that case as well.
And then, I’m sure that FIRE is seeing this new instance of even the new areas that are opening up where they’re using harassment policies and things to basically issue no contact orders against students who simply give voice to their opinions in class as other students are doing and then find themselves without any due process facing a no contact order, which is one of our cases. We just resolved just this last year involving Maggie DeYoung where she was an art therapy student and a no contact order was issued against her without then hearing her side simply because she was asked about her position concerning her faith and some other issues.
She shared that position and not only did the school say she couldn’t come near these three students that said they felt microaggressions against them, she not only couldn’t come near them in campus and would have to leave the room, but they tried to apply the order off-campus to Starbucks and all those places. So, there’s just no end to, I think, the creativity of government officials who only want their own perspectives to be heard on campus.
Nico Perrino: So, Kristen, we are reconvening here about a week and a half after we spoke in FIRE’s D.C. offices and I asked you to come on the show because in the intervening time, there have been two kind of high profile pieces about your organization. One was in the Washington Post, we know it was about you guys’ litigation tactics which we talk about a little bit in our original conversation, but I want to bring up again in the context of this article. And then, there’s another very long profile in the New Yorker about ADF’s history and kind of your organizational strategy.
I wanna focus for the purposes of this kind of final segment on the Washington Post article because it seems to make some allegations that ADF has done something untoward it’s First Amendment litigation cases in particular, it’s free speech cases, namely in cases involving the challenges to anti-discrimination laws that are applied to vendors who’s services are expressive. You argue these applications as we discussed previously unconstitutionally compel speech. These vendors, as our listeners will recall, include photographers, videographers, artists, stationary creators, and most famously, of course, cake bakers and website designers.
They who don’t want to provide their services, which are arguably expressive, for same sex weddings due to their religious convictions. Now the allegations in the Washington Post article seem to boil down to three things. One, that these were fake companies that were sometimes founded just before the lawsuits were filed and that stopped providing their services after the lawsuits or litigation ended. Two, that ADF lawyers were affiliated or affiliated lawyers, sometimes not ADF staff attorneys were involved in setting up the companies, including preparing incorporation documents and company policies.
And then, finally, that ADF took pictures of clients that include staged scenes involving ADF employees. Now, I know in the previous conversation, we talked about test cases and kind of the history of civil rights groups preparing test cases to challenge perceived unconstitutional or unjust laws, so I just wanna give you this opportunity to address mainly those three allegations and how you and ADF are kind of thinking through them.
Kristen Waggoner: Sure. Well, I would say that the Washington Post article is misleading both in terms of what it says and incomplete in terms of what it doesn’t say. There are a number of ways I can respond. I think first of all, our clients are real people with real businesses that want to engage in the wedding industry and some had already begun to do so when the suit was filed and some simply wanted to do so.
And the law provides the right to Americans to be able to challenge laws if they want to enter into a particular area and that would violate the law – they don’t have to break the law before they challenge the law if it’s unjust. In terms of kind of addressing sort of point by point, help walk me through this so I don’t forget any, but I think it’s important to set the context for how these cases came about. And if you recall, in 2012, I think we talked earlier a little bit about Jack Phillips and that three other cases that essentially came in a six month period that were widely publicized.
And I can tell you and I’m sure that this is FIRE’s experience as well, when you represent famous clients and we represented the most famous cake artist in the history of America, I suspect, you tend to get calls from people who are facing similar threats. You get those inquiries and that certainly was our experience. We get about 6,000-10,000 requests a year. During the period that we’re talking about included the pandemic and during that pandemic, we exceeded 10,000 requests and calls and emails that came in.
So, we were inundated with these kinds of requests and we were inundated largely by people of faith because that’s – while we serve people of all faiths, we’re predominantly known in religious communities, and so it was those artists that were caught in the crosshairs that contacted us. Now, in terms of, you know, what we did with those inquiries, certainly we have a wide network of attorneys that are in private practice, I was one of them before I even joined ADF, and we want to ensure when we’re filing a case that the client is in the best legal position possible.
So, I can imagine that certainly if someone isn’t incorporated or they’re wanting to start a business, we will ensure that they can start that business and hopefully have the corporate shield in the process or things like that, have the right policies in place. But again, I think it’s important to emphasize here that these are real people with real cases and what I find especially alarming was two things about the Post article.
One was that it deceptively ignored what the law is in terms of pre-enforcement challenges, but two is that it actually ignored the time period in which these cases were filed – not only the history, the threats of six figure fines and penalties and jail time that people were facing, but also the fact that these cases go on for nearly a decade. Many of them went on for six, seven, eight years and the Washington Post is complaining that during that time, people got married or people had babies or people moved out of state or they might have gone part time because their family dynamics changed. I think that’s –
Nico Perrino: I found the – yeah, I found the information about it, I think it was one of your plaintiffs in Kentucky moving to Florida in the middle of the lawsuit and this was somehow evidence that the case wasn’t real. It’s like, if ADF was controlling these cases, they would not tell their plaintiff or they would advise their plaintiff to not move to Florida in the middle of the litigation. I believe she was a photographer, but I might not be remembering correctly.
We talked about this a little bit in our previous conversation, test cases date back to Plessey v. Ferguson where civil rights groups are trying to set up a challenge to what’s perceived as an unjust law. Rosa Parks was specifically selected for her various skills and characteristics to try and sit at the front of the bus, for example. I’d be interested in seeing, you know, the Washington Post take a look at other public interest law firms and seeing kind of what they do to set up their cases, but they do talk about that a little bit in the article about the NAACP, for example, working with folks to challenge other anti-discrimination laws, I think, pertaining to housing.
It’s my understanding that it’s fairly prevalent and I remember reading or listening to a podcast by I think it’s called More Perfect and it’s about the Supreme Court and they did a whole episode in 2016 about test cases in the context of the challenge to affirmative action. And they dive – I’ll put that into the show notes for our listeners, but I did wanna ask and I recognize we’ve only got a few moments here.
We had talked before about how you have something like 4,500 affiliated attorneys, you provide legal services to churches and other religious groups. Would those groups include these sort of for-profit corporations or are they mainly directed at providing legal services outside of the litigation context to churches and ministries?
Kristen Waggoner: All of the above. So, for example, my practice was for 16 years, I practiced in Seattle and I practiced on both sides of the line, litigation and business and would sometimes do work with Alliance Defending Freedom and assist them when they had help and sometimes they would give me grants on cases, that’s a program that ADF has as well, so that I could be able to practice in these areas and defend freedom in my own neighborhood. So, the services apply both to for-profits and to nonprofits. We don’t really make a distinction.
The distinction is made on what the issue is they’re asking for help with. And so, if it’s within the areas that we’ve already talked about, then we will do our best to help them and sometimes we’re able to help ourselves, other times we’ll refer it out and we don’t always track what we’re referring out, but we want to ensure that people – if we can get them help, they get the help they need. And I think it’s also important to remember that in these pre-enforcement challenges, to have standing, which is a very clear doctrine in the Court, you simply need to establish that there’s a credible threat of enforcement.
And when the government says we’re coming after you, that’s a credible threat of enforcement. And in all these cases, the courts themselves evaluated whether standing was there. They evaluated whether it was a fake case and they found that it was not and the Post kind of neglects to touch on the fact that so many different judges have already looked at this issue. It cites a couple that said, “This seems like it might not be real,” but it doesn’t cite any of the many judges that said, “Yes, this meets the standard.”
Nico Perrino: Yeah, the interesting thing about this article is not that it alleges that 303 Creative was a fake case but that some of the cases that you cite to justify – to express the sort of trend were fake cases. But as you mentioned in the 303 Creative case which was a pre-enforcement challenge that was stipulated by the State of Colorado that the anti-discrimination law would be applied to 303 Creative.
Kristen Waggoner: Well, but even in the cases that they cite, that they cited, you know, one was an Eighth Circuit decision, another I think was out of Kentucky, the Chelsea Nelson case, New York, Emily Carpenter, those cases are still ongoing. The Court has inquired whether they’re fake cases and whether their standing has found that there is standing, there is a credible threat. There’s actually jail time that’s being threatened to be enforced and in the case of Telescope Media Group in the Eighth Circuit, those were filmmakers that faced jail time.
So, it’s trying to essentially create an issue to undermine essentially the work that we’re doing not realizing or perhaps ignoring the fact that they are undermining the hallmark of civil rights litigation. In many of the cases, even the ones that you mentioned, they’re using testers. These aren’t even real people that are wanting to engage in real businesses, so we’re not even talking about testers in this instance.
Nico Perrino: That was that More Perfect podcast episode that I was referencing, the host in it talked about how there was some sort of Supreme Court case in the early 20th Century that said that these test cases were protected under the First Amendment. I can’t track that case down but it might exist.
Kristen Waggoner: It does.
Nico Perrino: I believe it’s something – it does? Do you know it off the top of your head?
Kristen Waggoner: I read it this morning and I can’t remember but I think it may have been an ACLU case.
Nico Perrino: Oh, okay. Well, if you know it, send it to me.
Kristen Waggoner: Actually, if you go to our website, we have an article on our website that says something to the effect of “Does ADF make up cases?” in response to this Washington Post article and you can see a very detailed response that we have and it cites the law review articles that have been written on these test cases, as well as a number of the test cases themselves.
Nico Perrino: I believe there was a case coming out of the D.C. Circuit too involving some animal rights group as well dealing with test cases. Anyway, Kristen, I know you gotta run. Before we go, did you wanna say anything about the New Yorker piece which was a longer profile or do you have time for that?
Kristen Waggoner: I don’t think I’ve ever seen an article with so many contradictions and flaws, I mean, suggesting that we’re crazy and making up controversies involving gender identity, and yet, at the same time suggesting that we’re successful and we have all these clients and I think the New Yorker article misquoted, mischaracterized, excluded interviews. It was dripping with bias and frankly, I think a little bit of chauvinism, but it’s very inaccurate. On the other hand, I’m trying to take it with a grain of salt and say, well they must think we’re doing something right. Apparently we’re crazy and we can still win.
Nico Perrino: Well, Kristen Waggoner, I appreciate you coming on the show and talking with us today and I hope we get an opportunity to do it again sometime soon.
Kristen Waggoner: Well, thank you. I love FIRE and I am so privileged that we get to partner in protecting speech.
Nico Perrino: We partner a lot and so, I think we filed a brief in Grants Pass, right? An amicus brief?
Kristen Waggoner: I think so. You filed a brief in a number of cases and I hope that I think we’ve reciprocated the favor quite a few times too.
Nico Perrino: Well, to our listeners listening, as you know, a video version of this conversation will be available on YouTube. We’re on social media if you want to engage and we take email feedback at sotospeak@thefire.org and until next time, thank you again for listening.