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How Progressive Free Speech Law Makes Some Citizens More Equal than Others

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.

Public Accommodation

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.

Slippery Slope

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.

Reader Discussion

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on September 12, 2019 at 07:14:27 am

Who would want a derogatory depiction of their wedding?

Apparently McGinnis has never been divorced. : - )

Still, McGinnis's remark begs the question: Can the manner in which someone provides a good/service convey the opinions of the provider? And if so, would that convert the provision of that good/service into speech?

If a baker disapproves of a wedding, and provides a cake that looks/smells/ tastes bad to convey that disapproval, would that constitute speech?

How 'bout flower arrangements? Pre-wedding janitorial services? Pre-wedding snow shoveling?

So perhaps video is an easy case. But that doesn't mean that the slope isn't slippery.

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....

Exactly. And perhaps we have one more convert to the Market Power Affirmative Defense? After all, even if a public accommodation was traditionally regulated a matter of market power, if the provider of the accommodation does not wield much market power a given circumstance, do civil rights goals continue to justify the regulation?

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nobody. really
on September 12, 2019 at 09:17:02 am

[…] Group v. Lucero offers a glimpse at the progressive vision for the future of the First Amendment. How Progressive Free Speech Law Makes Some Citizens More Equal than Others syndicated from […]

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How Progressive Free Speech Law Makes Some Citizens More Equal than Others | Best Legal Services
on September 12, 2019 at 09:28:29 am

Yep!

BTW: Would you offer MPAD to Netanyahu? - Jus' askin'?

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gabe
on September 12, 2019 at 09:41:08 am

From Hurley v Irish-American Gay and Lesbian Association (1995), a unanimous opinion including Stevens, Kennedy and Ginsburg:

"Since all speech inherently involves choices of what to say and what to leave unsaid," Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 11 (1986) (plurality opinion) (emphasis in original), one important manifestation of the principle of free speech is that one who chooses to speak may also decide "what not to say," id., at 16. Although the State may at times "prescribe what shall be orthodox in commercial advertising" by requiring the dissemination of "purely factual and uncontroversial information," Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985); see Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 386-387 (1973), outside that context it may not compel affirmance of a belief with which the speaker disagrees, see Barnette, 319 U. S., at 642.

In Hurley, the Boston St. Patrick's Day Parade organizers did not exclude gays from marching, only from marching as an expressively gay association.

Also from the opinion:

the Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another. The message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control.

You can invoke the word "antidiscrimination" all you like. The clear purpose of cases like this one (the 8th Cir case) and the case against the CO baker is simply to seek out and punish all who disapprove of gay marriage or gay people. It is the disapproval that is the evil, not the inability to obtain a cake or a video. It is the disapproval itself that must be found out and punished. Is not disapproval discrimination? If you are committed to ending all discrimination, aren't you thereby logically committed to ending all disapproval, or at least all visible manifestations of disapproval? And since as between approval and disapproval, tertium non datur, at least not practically or politically, isn't it necessary, in order to end discrimination, of which visible disapproval is a species, to require visible, formal acts of approval?

So, starting from a premise one believes to be at least benign, if not virtuous, if not heroic even--that all discrimination against a certain class of persons must be eliminated, one eventually concludes, even if only tacitly or subconsciously, that one must eliminate all manifestations of disapproval, then to another eventual conclusion that a failure or refusal to perform acts that manifest approval (whether sincere or not does not matter--yet) is itself a manifestation of disapproval that is fair game for seeking out and punishing. But all the while one believes oneself merely to be against discrimination. (And placing the word "invidious" before "discrimination" merely begs the question).

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QET
on September 12, 2019 at 11:15:40 am

I recall Frank sinatra commenting many years ago:

"I thought we were expected to tolerate them - NOT CELEBRATE them."

Rather succinct - YET accurate.

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gabe
on September 12, 2019 at 11:30:26 am

Exactly. Mere toleration, aka indifference in deed even if not in thought, is neither "welcoming" nor "inclusive," two terms from the new moral code progressives are attempting to foist on us.

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QET
on September 12, 2019 at 11:44:12 am

The case is actually much simpler to resolve and does not involve being on the "slippery slope" of deciding which marriage vendors are engaged in their own, independent speech. That calculus, which has been the main thrust of those defending the marriage vendors ("cake decoration is artistic! so is flower arranging!") and which Judge Stras bought into here, does, indeed, make videographers the "easy case," perhaps the easiest one. But it throws venue renters and table and chair providers under the bus, even though they have exactly the same objection to assisting a same-sex marriage: they don't want to be associated with, or facilitate, a ceremony with which they have religious objections.

The key speech, then, is not that of the vendors, but that of the same-sex couple. The vendors do not want to join their parade, and the vendors cannot properly be forced to associate with that speech to which they object. Live Free or Die, indeed.

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Rick
on September 12, 2019 at 13:02:11 pm

Could not resist this one:

https://www.americanthinker.com/blog/2019/09/transgenderism_conquers_science_at_canadian_cancer_society.html

wherein we find that the Canadian Cancer Agency is now promoting cervical cancer examinations for transgender women, the tranny spokesperson for which admits that no cervix is present BUT....
Soon we will find that Canadian doctors will be required to show their support for this idiocy by conducting the examination upon a non-existent (female?) organ.

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gabe
on September 12, 2019 at 13:33:44 pm

Yeah, transgenderism is the shark that progressivism has jumped.

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QET
on September 12, 2019 at 14:34:58 pm

The key speech, then, is not that of the vendors, but that of the same-sex couple. The vendors do not want to join their parade, and the vendors cannot properly be forced to associate with that speech to which they object.

I acknowledge that venue-renters and chair-providers have similar interests to videographers.

But would you also acknowledge that venue-renters have the right to discriminate against mixed-race couples? or Jewish couples? or mixed-race Jewish couples?

There are real arguments about defending the autonomy rights of providers of public accommodations. For better and worse, those arguments were lost with the passage of the 1964 Civil Right Act and subsequent litigation. That's been the law of the land for the past half-century, predating the Stonewall riot and the rise of LGBT rights.

The challenge the courts face is in trying to reconcile the view that discrimination on the basis of suspect classes is illegal and the view that we should respect people's autonomy. Different courts find different places to draw the line.

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nobody.really
on September 13, 2019 at 09:05:00 am

There is no doubt that, if LGBT is considered the equivalent of race, LGBT wins. But they are not equivalent in reality and not yet in precedent. Can anyone imagine Kennedy writing what he did in Obergefell and Masterpiece about some religious people having honest and acceptable views opposing same-sex marriage if the cases had been about an interracial marriage? The differences must be explained, as several amicus briefs did in the Title VII cases that will be argued at the Supreme Court in October.

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Rick
on September 13, 2019 at 18:42:29 pm

Some citizens definitely are "more equal" than others. Heck they are just categorically better. Straight, non-deviant, ethical people should not be forced to serve the inferior and morally bankrupt. Get used to it. Thus is the way of history, the natural world, and the future.

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Jake Sagehen
on September 13, 2019 at 19:31:17 pm

It seems uncontrovertible that video editing and artistic direction are expressive. An author who dictates a book engages in a type and quality of expression that the stenographer who records it does not. If this principle were not the case, we would not ponder Leni Riefenstahl's responsibility for "Triumph of the Will." We also would not be able to Google "deceptively edited videos" and get any meaningful results. Aesthetic decisions are an integral part of expressive communication and are protected by the First Amendment. The Eighth Circuit's decision is reasonable logical and appears to be legally correct. First Amendment rights of free expression have priority over protections against discrimination in commercial transactions.

What is Interesting about Telescope Media Group is how tendentious, illogical, poorly written and rambling the dissent is. The majority opinion was pretty clear: the government may not declare another's speech itself to be a public accommodation or grant protected individuals the right to participate in another's speech. The dissent ignores this rather straight-forward principle.("Such objections do not allow business owners to deny protected persons equal access to goods and services...under a generally applicable public accommodations law.") Instead, she tries to stuff her opinion with every possible progressive taking point and irrelevant allusion ("This evidence is consistent with the well-documented history of discrimination against gays and lesbians in this country"; "Minnesota is not alone in making sexual orientation a protected characteristic..."l "Numerous religious groups supported the inclusion of sexual orientation as a protected characteristic under the MHRA.") Her rambling and faulty reasoning skills were properly noted by the majority in footnote 3. Judge Kelly seems to perceive she is intellectually over-matched by the majority judges, and is not particularly skilled at hiding it.

What Judge Kelly seems to be trying to insinuate is that Who/whom takes precedence over what. The what in this case is a Constitutionally protected interest, freedom of expression, and the who/whom is a Christian business owner and gay couples. Her reasoning opens up a Pandora's box of who/whom.:

1.) Is there any rational argument that public universities should not be subject to public accommodations laws, and as such race-segregated dormitories and commencement ceremonies, not to mention minority-only scholarships, run afoul of such laws?

2.) What happens when a member of the Westboro Baptist Church tries to join the newly chartered LGBT Credit Union in Michigan?

3.) Does the platform/publisher distinction hold with respect to public accommodation laws? Could Twitter's terms of service state that it will not host videos of gay weddings without running afoul of public accommodations laws? Why or why not?

4.) What if the videographer here were to put a watermark on every video "Marriage is between a man and a woman?" Is this conduct or expression? Can anyone complain about discrimination, if it is an all videos? Does it violate public accommodation laws?

What Judge Kelly is trying to say is that the Constitutional rights must sometimes be sacrificed for symbolic displays of "progress." She is wrong.

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z9z99
on September 16, 2019 at 11:45:15 am

This remark reflects my understanding of legal doctrine as well. But it differs from the first statement.

Rick initially proposed that this matter is "actually much simpler" because all courts need to do is recognize when parties "don’t want to be associated with, or facilitate, a ceremony with which they have religious objections." Doctrine suggests that the focus of the analysis is not the party's objections, but the category (and thus the degree of deference) that that customer is in.

Thus, it seems to me perfectly reasonable--indeed, imminently reasonable--that a fundamentalist Christian might not want to be associated with a Jewish (or Muslim, or whathaveyou) wedding. And a member of the Christian Identity Movement (a/k/a a Klansman) might have sincere objections to participating in a wedding of people of a different race than herself, or people of different racial groups. But doctrinally, the sincerity of the objection is beside the point. At least, that's my understanding.

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nobody.really

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