Issuing this order about free speech will not make it less likely that progressives will continue to misuse executive authority for their own purposes.
Two weeks ago, the Eighth Circuit Court of Appeals advanced free speech rights by holding that a video company could not be required by law to make videos of same-sex weddings, even if it chose to make videos of opposite sex weddings. This case should not be a hard one. As Judge David Stras noted for the majority, there can be no doubt that the First Amendment protects videography just as it protects films and photographs.
The Larsens, the owners of the company plaintiff in the case, exert substantial editorial control of the finished product to create a message, offering a celebration of an event. Who would want a derogatory depiction of their wedding? A filmed record of a wedding involves choices about what to leave in, what to leave out, as well as all kinds of decisions about how to shoot the footage that will comprise a mini-documentary that ideally says something of lasting value to those who watch it. To dismiss their work as conduct rather than expression because it involves placing cameras would be like saying the First Amendment doesn’t protect paintings because it involves “brushwork” or in blogging because it involves typing.
Unfortunately, there is a dissent in the case, which provides more evidence, if more evidence is needed, that progressives are willing to abandon their traditional support for a robust First Amendment when it gets in the way of their core political objectives, like expanding the scope of antidiscrimination law. Judge Jane Kelly, an appointee of Barack Obama who was mentioned as a possible replacement for Antonin Scalia, would distinguish between “independent artists” who enjoy full free speech protection and mere artisans like the Larsens who receive none. She would expand the scope of public accommodation law far beyond its traditional limits, essentially making all businesses a kind of public accommodation. She expresses concern that it might be hard to make distinctions between videographers and other service providers, as if the difficulty in drawing lines militates against protecting free speech. Each of these moves is likely to become familiar in the progressive playbook, and as such, deserve more extended consideration.
Independent Artists v. Artisans
Judge Kelly wants to ensure that her opinion does not require professional filmmakers like those in Hollywood to make films celebrating events they do not like. It is obvious that that such a requirement would violate the First Amendment. (It would not be in the progressive interest either, because almost all “independent artists” lean left). She distinguishes such independent artists from others because they choose their creative work. By contrast, she argues that the Larsens are in a business that purports to be open to all and lacks the characteristics that the First Amendment was created to protect.
This distinction seems question begging: the Larsens want to announce that they will not in fact offer their services for certain types of events. Be that as it may, Kelly’s core claim is that by making a video commemorating a same-sex wedding, outside observers will not conclude the Larsens are sending a message approving of same-sex marriage. Under Supreme Court case law, this audience perspective should not make a substantial difference; what matters is the person being asked to engage in expression. In a famous case, the Court held that the requirement that New Hampshire residents put the slogan “Live Free or Die” on their license plate violated their free speech rights. Everyone would have known that the slogan was New Hampshire’s, not the license plate holder’s own, but the court held that the state could not force its citizens to endorse on their vehicles a message in which they did not believe.
But more importantly, correctly construed, the First Amendment protects individual autonomy in offering messages about the world, not just protection about what others think about the individual. And to quote James Madison’s words, an individual enjoys the right of “property” in his or her “opinions.”
Kelly’s analysis creates class-based differences between those who enjoy the right to create expressions of their opinions and those who do not. Who is to judge who is an independent artist and who is just an artist for hire? Are independent artists not also influenced by a mix of ideological and commercial considerations in what they choose to film? Such a regulatory structure resembles a licensing regime, in which the government shapes who can speak, a practice that First Amendment was emphatically meant to reject.
The realistic way to understand this progressive version of free speech doctrine is that it wants to constrain a sector where inconvenient messages might be sent while continuing to empower the independent artist sector which can be counted on to send the “right” messages.
The next move is to expand the concept of public accommodation to include any form of buying and selling services or products. That is a perversion of the traditional concept, which focused on businesses like railways and inns. The underlying reason for singling out these businesses as an object of more intensive government regulation was their market power: consumers did not have much choice but to use them. (Sometimes theaters were included as public accommodations on the now anachronistic idea that the state government licensed them). The monopoly power of some forms of transportation is obvious. But even when there are competing inns or transportation services, people on the road might not know about them or have the time to search for services that better fit their needs. Nevertheless, that is not generally true of most businesses, including those employing videographers and photographers.
The significance of the progressive effort to expand this concept of public accommodation is twofold. First, it trades on an area of law where government regulation is heavy, creating a presumption in favor of more regulation. Second, it tries to create a basis for arguing that antidiscrimination law serves a sufficient interest to satisfy intermediate, if not strict scrutiny. If the kind of monopoly power implicit in public accommodation law is presumed, the argument can be made that the consumers cannot otherwise get the good or service in question.
Without the public accommodation context, the government would have to demonstrate consumer need. Otherwise the government is reduced to arguing that the benefit of the law is that it sends a message against discriminating between celebrations of same-sex and opposite sex weddings. But that justification is self-defeating, because the state would then be asserting that it wants to stop the Larsens precisely on account of its disagreement with the Larsens’ message.
Judge Kelly ends her dissent by arguing that the majority opinion creates a slippery slope, because its scope is unclear. Should companies that rent out “honeymoon suites” or make wedding cakes be able to discriminate between same-sex wedding and opposite sex weddings despite the Minnesota law? Some of the answers here are straightforward. Renting has no speech-like characteristics, even if a rental application decision is motivated by ideological beliefs, or a choice about who gets placed in the honeymoon suite is the product of prejudice.
But the more interesting question is whether slippery slope considerations should count against the recognition of a constitutional right. That is not generally the progressive view. Otherwise using the notion of liberty in the Constitution to require recognition of same-sex relations is open to even stronger objections, since the content of liberty seems relatively indeterminate. Moreover, it is a particularly strange argument to make in the context of free speech law. The “chilling effects” doctrine suggests that any concerns about the vagueness of the operation of law count against it for free speech purposes. Thus, judges will strike down entire laws that cover non-speech as well as speech activities. The fear is that even if a law has some legitimate applications on non-speech activities, its overbreadth will make people fear to exercise their free speech rights. Expressing concern that some non-free speech activity might conceivably benefit from a judicial decision protecting free speech stands that concern on its head. Judge Kelly’s dissent again demonstrates the growing willingness of progressives to abandon their historic concern with the right of everyone to express themselves.