Prisoner Swapped

My Thursday morning tweet summed it up:

After ten months of wrongful detention in the former Soviet Union, Brittney Griner was sent from Moscow to the UAE, in transit to the United States, as part of a prison exchange for “Merchant of Death,” Viktor Bout. 

Scenes from the prisoner swap on a tarmac in the United Arab Emirates were surreal. 

Left behind is Paul Whelan, the former Marine who has been in Russian captivity since December, 2018. 

Griner’s wife, Cherelle, shared the Thursday morning stage with President Biden, acknowledging the hard work the Biden administration did to secure the release of the WNBA Person of the Year, awarded hours before news of the end of her wrongful detention. For the Biden administration, this is a massive international and domestic win; a well-deserved wave they can ride into the new year. 

Attorney Joseph Capo remarked that “Everyone in the United States is thrilled that Brittney Griner is home for the holidays. Her return is truly a testament to diplomacy done well.”

As for what the future holds for Griner, it’s safe to assume that 2022 has left her physically and emotionally broken. To get from where she will be when she lands in the U.S. to playing condition – if she even wants to play professional basketball again – is going to be a deeply complex and arduous process. 

I have been speaking and writing about the Griner situation for the past ten months. I firmly believe that Thursday’s news was in part a product of traditional and social media pressure on President Biden to keep Griner in the public spotlight.

On that note, it is absolutely critical that we keep the same public pressure on the administration to bring Paul Whelan home. His family has suffered too much. 

I discussed Griner’s release all over the media on Thursday and Friday, including ESPN. 

Deshawn Watson’s Inglorious Return

If there is an NFL player over the past few decades with a more tarnished reputation while still in the league, I can’t think of who he might be. 

Deshawn Watson, former Houston Texans and current Cleveland Browns QB has been a train wreck of sexual harassment lawsuits – at least three dozen of them by the time all is said and done. 

Sunday marked his (insanely premature) return to the National Football League after having served a suspension of just over one-half an NFL season. 

Criminal law attorney Michele Finizio points out:: “The league has set the bar low for personal conduct. It’s going to take a disturbing fact set to surpass the 11-game suspension in the Watson case.”

That’s the problem where precedent applies in an organization, here the NFL, that doesn’t legally need to be bound by precedent (they’re not a court) and has a malleable application of the rules that seems to fit the league’s wants and needs, as I commented on ESPN back in October. 

Building a league based on what works best in the moment rather than on policies and procedures that help move the game forward is at least where the NFL appears to be today, which could be a recipe for disaster. 

A big part of the problem in situations such as this is that each week the player spends back on the field, the more the conversation shifts from what caused his suspension to his game performance. Within weeks, there is a collective amnesia that remains until the next case hits the news cycle and the courts. This seems like a remarkably inefficient way to try to educate and change behavior.

The NCAA Transfer Portal Opens for the Year

How big a deal is the NCAA transfer portal these days? Isn’t it only like 20-30 players a year who enter the portal, seeking to get out of the commitment they made to attend their current school in order to transfer to another?

Nope.

The transfer portal opened on Monday, with over 500 student-athletes entering it. By the end of the month, some experts are expecting more than 1,000 to seek a new school. 

This is obviously not without problems. First and foremost, I have heard some players are getting 15-20 calls to leave their current programs, each one tied to strong financial incentives. 

Attorney Michael Epstein observes that: “Very few superstar players are hitting the transfer portal because there is an incentive structure that drew them there in the first place.”

As long as that financial structure is in place, it makes sense for the player to stay. But for other players, it makes more financial sense to listen to offers.

The best case scenario in the transfer portal is when players leave for reasons that aren’t financially incentive-based. 

This is more relevant than usual this week with Deion Sanders, aka “Coach Prime,” leaving small-time Jackson State for big-time University of Colorado. Jackson State’s starting QB is his son, and he will follow his father/coach to Colorado through the transfer portal. At least a couple of other star players will also follow. 

I don’t think there’s anything wrong with any player leaving a program to follow the coach who recruited them. It keeps players from being locked into bad situations. 

But it also contributes to the reality that NCAA athletics is now a professional sport. Maybe it should have been that way in the first place. So top coaches are in the business of raising more funds than ever so more of their players can earn money through these NIL deals. Some schools are even running their own NIL programs, while some are old school – third parties (team boosters who run and own local or even national businesses) administering programs that put cash in the pockets of players. 

Can the Supreme Court be Saved?

“From itself” would be an appropriate end to the caption above.

A very recent New York Times “The Daily” expose on a year-long influence campaign aimed at the Supreme Court hits at a moment where public confidence in the Supreme Court is very low. 

The current erosion of trust in the Court comes from the decision leak in Dobbs, the abortion case that overturned Roe v. Wade. If, as reports indicate, it turns out that the Dobbs leak was at such a high level that Justice Alito was involved, there may be an investigation from the FBI or DOJ. 

As Attorney Tim George points out, “Anything that erodes public confidence in the Supreme Court needs to be addressed transparently.”

Things aren’t just bad for the Supreme Court today; they’re historically bad. In July, 43% of Americans had little to no confidence in the Court, up from 27% only three months before. And there is nothing to indicate that this year’s Supreme Court term, which began in October, will help the Court rally. 

Aside from the Dobbs leak, many Americans have lost confidence in the Supreme Court because of how politicized they see it. Between the Court’s “shadow docket,” which I have written about, and concerns about the Court’s shift to the right (the drop in confidence was, according to the AP, driven by Democrats), the future of the Court will be affected by whether or not it is able to regain the trust of far more Americans than it has today. The key of course, is consistency in their opinions, which many argue has been lacking. 

Should a Web Designer Be Forced to Build a Website?

As we ask rhetorical questions such as whether the Supreme Court can be saved, the Court moves forward in carrying about its business and hearing new cases. 

On Monday morning, they heard a very important one that I wrote about in July.

In 303 Creative LLC v. Elenis, Lorie Smith, a Christian web designer, wanted to add wedding websites to her work. No problem at all there, but she refused to build sites for same-sex weddings. She wanted to post this policy on her site, but state law in Colorado prevents businesses such as hers that are open to the public from discriminating against LGBTQ+ people or even posting a message such as this on their website.

The U.S. Court of Appeals for the 10th Circuit ruled that while the websites that Smith builds are a form of speech, Colorado’s anti-discrimination law does not violate the Constitution here. As abhorrent as the idea of a designer refusing their creative services to people who don’t share their values is, there is something about the creative process and being forced to do something that definitely doesn’t sit well here.

The Supreme Court granted certiorari to address the following question presented:

Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech or free exercise clauses of the First Amendment.

The Supreme Court may find that the appellate court missed the foundation of this issue. The 10th Circuit held that Colorado has an interest in ensuring that LGBTQ+ people have access to the quality of wedding websites that Smith builds. While they conceded that people denied service by Smith could have their wedding websites built elsewhere, they could be of “lower quality and nature” than the websites built by Smith.

Reducing the argument to the absurd, what if Smith were to comply with a court order and design deeply abhorrent websites for same-sex couples, including incendiary messages? And what if Smith chose to publish screenshots of the sites they built on her company’s website – very much as wedding photographers highlight images of their clients’ weddings on their website?

In practical terms, this could quickly be a mess, which is what happens when the creative process is coerced. While it would be great to live in a world where talented designers were happy to do their best honest work for people whose beliefs and life choices don’t resonate with their own, this isn’t always the world in which we live.

Michael F. Lombardi, a New Jersey lawyer, observes that:

“This is going to be an important decision because the Supreme Court will be providing practical guidance for businesses that provide creative services. The Court’s decision will determine when the business can justifiably claim a religious rights exemption to providing their services to clients.”

It took four consecutive case conferences for the Court to grant certiorari only on a First Amendment freedom of speech argument in this case and not the other issues the web designer asked to be considered, which may be indicative of the complexity of cases involving the Court seeking to strike a balance between sincerely-held religious beliefs and LGBTQ+ rights.

Listening to the oral argument highlighted how remarkably complex this issue is and why it’s such an important case. My view here is well-aligned with an excellent New York Times analysis from Monday afternoon, in which the author suggests that the court will side with the web designer but seek limiting legal principles so as not to cause a massive mess.

On Tuesday morning on a FOX News interview, the designer, Lorie Smith, started her position: 

“Colorado is censoring my speech and compelling me to create artwork and speech inconsistent with my beliefs – this goes against the core of who I am.” Smith said that she has created websites for LGBTQ couples but can’t “create a message for everyone who asks.”

Her lawyer added, “This is about what the message is, not who the person is.”

Because of the magnitude of this case, it is expected that the Supreme Court will leave it until the end of the term, releasing their decision in late June. 

Until next week, be well!

About Aron Solomon

A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and 24-7 Abogados. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN,  TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.