Videographers Have First Amendment Right Not to Make Same-Sex Wedding Videos

From this morning's 2-to-1 Eighth Circuit decision in Telescope Media Group v. Lucero, written by Judge David Stras and joined by Judge Bobby Shepherd (Judge Jane Kelly dissenting in major part):

Carl and Angel Larsen wish to make wedding videos. Can Minnesota require them to produce videos of same-sex weddings, even if the message would conflict with their own beliefs? The district court concluded that it could and dismissed the Larsens' constitutional challenge to Minnesota's antidiscrimination law.

Because the First Amendment allows the Larsens to choose when to speak and what to say, we reverse the dismissal of two of their claims and remand with instructions to consider whether they are entitled to a preliminary injunction [which, given the majority's legal analysis, seems nearly certain (unless the Eighth Circuit rehears the case en banc or the Supreme Court agrees to hear it)-EV].

Here's the majority's explanation of the facts:

The Larsens, who own and operate Telescope Media Group, use their "unique skill[s] to identify and tell compelling stories through video," including commercials, short films, and live-event productions. They exercise creative control over the videos they produce and make "editorial judgments" about "what events to take on, what video content to use, what audio content to use, what text to use … , the order in which to present content, [and] whether to use voiceovers."

The Larsens "gladly work with all people—regardless of their race, sexual orientation, sex, religious beliefs, or any other classification." But because they "are Christians who believe that God has called them to use their talents and their company to … honor God," the Larsens decline any requests for their services that conflict with their religious beliefs. This includes any that, in their view, "contradict biblical truth; promote sexual immorality; support the destruction of unborn children; promote racism or racial division; incite violence; degrade women; or promote any conception of marriage other than as a lifelong institution between one man and one woman."

The Larsens now wish to make films that promote their view of marriage as a "sacrificial covenant between one man and one woman." To do so, they want to begin producing wedding videos, but only of opposite-sex weddings. According to the Larsens, these videos will "capture the background stories of the couples' love leading to commitment, the [couples'] joy[,] … the sacredness of their sacrificial vows at the altar, and even the following chapters of the couples' lives." The Larsens believe that the videos, which they intend to post and share online, will allow them to reach "a broader audience to achieve maximum cultural impact" and "affect the cultural narrative regarding marriage."

Minnesota authorities interpret the state's ban on sexual orientation discrimination in public accommodations as "requiring the Larsens to produce both opposite-sex- and same-sex-wedding videos, or none at all," and "[i]f the Larsens enter the wedding- video business, their videos must depict same- and opposite-sex weddings in an equally 'positive' light."

The majority held (correctly, I think) that applying this law to the Larsens would unconstitutionally compel speech, as well as unconstitutionally restricting speech:

[A.] The Larsens' videos are a form of speech that is entitled to First Amendment protection. The Supreme Court long ago recognized that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." …

Although the Larsens do not plan to make feature films, the videos they do wish to produce will convey a message designed to "affect public attitudes and behavior." According to their complaint, they will tell "healthy stories of sacrificial love and commitment between a man and a woman," depict marriage as a divinely ordained covenant, and oppose the "current cultural narratives about marriage with which [the Larsens] disagree." By design, they will serve as a "medium for the communication of ideas" about marriage. And like the creators of other types of films, such as full-length documentaries, the Larsens will exercise substantial "editorial control and judgment," including making decisions about the footage and dialogue to include, the order in which to present content, and whether to set parts of the film to music. The videos themselves are, in a word, speech….

The complaint makes clear that the Larsens' videos will not just be simple recordings, the product of planting a video camera at the end of the aisle and pressing record. Rather, they intend to shoot, assemble, and edit the videos with the goal of expressing their own views about the sanctity of marriage. Even if their customers have some say over the finished product, the complaint itself is clear that the Larsens retain ultimate editorial judgment and control.

[B.] It also does not make any difference that the Larsens are expressing their views through a for-profit enterprise. In fact, in holding that motion pictures are protected by the First Amendment, the Supreme Court explicitly rejected the idea that films do not "fall within the First Amendment's aegis [simply] because" they are often produced by "large-scale business[es] conducted for private profit." …

[C.] Minnesota's position is that it is regulating the Larsens' conduct, not their speech. To be sure, producing a video requires several actions that, individually, might be mere conduct: positioning a camera, setting up microphones, and clicking and dragging files on a computer screen. But what matters for our analysis is that these activities come together to produce finished videos that are "medi[a] for the communication of ideas." See also Brown v. Entm't Merchs. Ass'n (2011) ("Whether government regulation applies to creating, distributing, or consuming speech makes no difference.").

If we were to accept Minnesota's invitation to evaluate each of the Larsens' acts individually, then wide swaths of protected speech would be subject to regulation by the government. The government could argue, for example, that painting is not speech because it involves the physical movements of a brush. Or it could claim that publishing a newspaper is conduct because it depends on the mechanical operation of a printing press. It could even declare that a parade is conduct because it involves walking. Yet there is no question that the government cannot compel an artist to paint, demand that the editors of a newspaper publish a response piece, or require the organizers of a parade to allow everyone to participate….

[D.] Minnesota's interpretation of the MHRA interferes with the Larsens' speech in two overlapping ways. First, it compels the Larsens to speak favorably about same-sex marriage if they choose to speak favorably about opposite-sex marriage. Second, it operates as a content-based regulation of their speech….

[1.] To apply the MHRA to the Larsens in the manner Minnesota threatens is at odds with the "cardinal constitutional command" against compelled speech. The Larsens do not want to make videos celebrating same-sex marriage, which they find objectionable. Instead, they wish to actively promote opposite-sex weddings through their videos, which at a minimum will convey a different message than the videos the MHRA would require them to make. Even if the Larsens' desire to selectively speak is "provocative" and "stirs people to anger," Minnesota cannot "coerce[ them] into betraying their convictions" and promoting "ideas they find objectionable." Compelling speech in this manner, as the Supreme Court made clear in Janus, "is always demeaning." This is especially true here, because Minnesota insists that the Larsens must be willing to convey the same "positive" message in their videos about same-sex marriage as they do for opposite-sex marriage.

Minnesota attempts to downplay this injury by pointing out that the MHRA would not require the Larsens to convey any specific message in their videos. Even if the Larsens must be willing to produce "positive" videos about same-sex marriage, Minnesota argues, they need not actually do so unless a customer requests a film with this point of view.

Even aside from its implausibility—for it seems unlikely that any same-sex couple would request a video condemning their marriage—this argument does not get Minnesota far under First Amendment doctrine. The Supreme Court has recognized that the government still compels speech when it passes a law that has the effect of foisting a third party's message on a speaker. In Hurley, for example, it held that Massachusetts could not use its public-accommodation law to require the sponsors of a private parade to include a group of gay, lesbian, and bisexual individuals who wished to march while "carrying [their] own banner." The Court explained that compelling the inclusion of others impermissibly "declar[ed] the sponsors' speech itself to be [a] public accommodation" in a way that "alter[ed] the expressive content of their parade."

Similarly, in Tornillo, the Supreme Court addressed a Florida statute that required newspapers that published attacks on the "personal character or official record" of political candidates to publish the candidates' responses too, free of cost. Forced inclusion, the Court reasoned, "fail[ed] to clear the barriers of the First Amendment" because it impermissibly "intru[ded] into the function of the editors." The lesson from Tornillo is that the First Amendment is relevant whenever the government compels speech, regardless of who writes the script.

[2.] The MHRA also operates in this case as a content-based regulation of the Larsens' speech, even if, as the Supreme Court has recognized, the MHRA does not, "[o]n its face, … aim at the suppression of speech."  A content-based regulation "[m]andat[es] speech that a speaker would not otherwise make" or "exacts a penalty on the basis of the content of" speech. By treating the Larsens' choice to talk about one topic—opposite-sex marriages—as a trigger for compelling them to talk about a topic they would rather avoid—same-sex marriages—the MHRA does both at once.  In fact, by requiring the Larsens to convey "positive" messages about  same-sex weddings, it even goes a step further.

The Supreme Court's decision in Tornillo highlights the problems with content-based regulations. Even if a regulation that requires speech does not directly "prevent[ speakers] from saying anything [they] wish[]," it still exacts a penalty. In Tornillo, the penalty threatened to drive "editors [to] conclude that the safe course [was] to avoid controversy" and to simply not "publish[] news or commentary arguably within the reach of the … statute." Here, "the safe course" for the Larsens would be to avoid the wedding-video business altogether. Yet this type of compelled self-censorship, a byproduct of regulating speech based on its content, unquestionably "dampens the vigor and limits the variety of public debate."

{The allegations here may well be more troubling from a First Amendment perspective than the facts of Tornillo. In that case, all the newspaper had to do was reproduce verbatim an opinion piece written by someone else. The MHRA, in contrast, would require the Larsens to use their own creative skills to speak in a way they find morally objectionable.}

[E.] Laws that compel speech or regulate it based on its content are subject to strict scrutiny, which will require Minnesota, at a minimum, to prove that the application of the MHRA to the Larsens is "narrowly tailored to serve [a] compelling state interest[]." …

The State asserts an interest in ensuring "that all people in Minnesota [are] entitled to full and equal enjoyment of public accommodations and services." (internal quotation marks and citation omitted). This interest has a substantial constitutional pedigree and, generally speaking, we have no doubt that it is compelling. For example, the Supreme Court has said that antidiscrimination laws typically "are well within the State's … power to enact when a legislature has reason to believe that a given group is the target of discrimination." Indeed, the MHRA itself withstood a constitutional challenge after Minnesota applied it to compel a "large and basically unselective" social club to accept female members. And like the dissent, we have little doubt that Minnesota had powerful reasons for extending the MHRA to protect its citizens against sexual-orientation discrimination.

But that is not the point. Even antidiscrimination laws, as critically important as they are, must yield to the Constitution. And as compelling as the interest in preventing discriminatory conduct may be, speech is treated differently under the First Amendment. See Hurley ("While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government."). As the Supreme Court has explained, even if the government may prohibit "the act of discriminating against individuals in the provision of publicly available goods, privileges, and services," it may not "declar[e] [another's] speech itself to be [a] public accommodation" or grant "protected individuals … the right to participate in [another's] speech."

Hurley is particularly instructive. When Massachusetts forced the organizers of a private parade to include a group that wished "to march in the parade as a way to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals," the Supreme Court concluded that applying the State's public-accommodation law in this way violated the organizers' freedom of speech. Although antidiscrimination laws are generally constitutional, the Court reasoned, a "peculiar" application that required speakers "to alter the[ir] expressive content" was not. In short, the Court drew the line exactly where the Larsens ask us to here: to prevent the government from requiring their speech to serve as a public accommodation for others.

Similarly, in Dale, the Supreme Court held that the Boy Scouts had the right to expel a gay-rights activist, despite a New Jersey antidiscrimination law that otherwise prohibited the action. The reason, the Court said, was that the Boy Scouts' opposition to homosexuality was expressive and "the forced inclusion of [the activist] would [have] significantly affect[ed] its expression." Like Hurley, Dale makes clear that once conduct crosses over to speech or other expression, the government's ability to regulate it is limited.

As these cases demonstrate, regulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be. It is a "bedrock principle … that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." After all, the Westboro Baptist Church could carry highly inflammatory signs at military funerals, the Nazis could march in areas heavily populated by Jewish residents, and an activist could burn the American flag as a form of political protest….

Indeed, if Minnesota were correct, there is no reason it would have to stop with the Larsens. In theory, it could use the MHRA to require a Muslim tattoo artist to inscribe "My religion is the only true religion" on the body of a Christian if he or she would do the same for a fellow Muslim, or it could demand that an atheist musician perform at an evangelical church service. In fact, if Minnesota were to do what other jurisdictions have done and declare political affiliation or ideology to be a protected characteristic, then it could force a Democratic speechwriter to provide the same services to a Republican, or it could require a professional entertainer to perform at rallies for both the Republican and Democratic candidates for the same office….

[F.] Even so, Minnesota argues that we should apply intermediate scrutiny based on a theory that, once again, turns on the distinction between conduct and speech. Specifically, when "'speech' and 'nonspeech' elements are combined in the same course of conduct" and the government seeks to neutrally regulate the non-speech element, intermediate scrutiny applies under the incidental-burden doctrine. According to Minnesota, the MHRA only incidentally burdens speech because it neutrally regulates "commercial conduct and economic activity" and requires the Larsens to do nothing more than provide "services to customers regardless of their sexual orientation."

The problem with this theory, even aside from the fact that the MHRA is not content neutral, is that Minnesota does not actually seek to regulate non-speech activity. The "commercial conduct" and "economic activity" to which Minnesota refers is the making of the videos themselves, which, as we have already explained, are speech. Indeed, Minnesota cannot specifically identify anything else, meaning that this is just a repackaging of its theory that making the videos is conduct, not speech.

Importantly, the fact that Minnesota is not shy about its belief that it can regulate the videos themselves distinguishes this case from other applications of antidiscrimination laws that actually do target conduct, which are generally constitutional even when they incidentally affect speech. An employment-discrimination law, for example, can unquestionably "require an employer to take down a sign reading 'White Applicants Only.'" And a public-accommodation law requiring a restaurant to serve people of all races, genders, and sexual orientations will have the incidental effect of requiring servers to speak to customers to take their orders. But these consequences are incidental because the relevant laws target the activities of hiring employees and providing food, neither of which typically constitutes speech. Here, by contrast, Minnesota is targeting speechitself.

{In fact, Minnesota's position intrudes on the Larsens' speech in yet another way. In its view, the MHRA would not allow the Larsens to even advertise what they have in mind for their wedding videos. The district court upheld this limitation on the theory that "telling potential customers that a business will discriminate … is part of the act of … discrimination itself."

This analysis, however, rests on a faulty premise. If creating videos were conduct that Minnesota could regulate, then the State could invoke the incidental- burden doctrine to forbid the Larsens from advertising their intent to engage in discriminatory conduct. But in this case, Minnesota cannot compel the Larsens to speak, so it cannot force them to remain silent either.}

Minnesota also suggests that a lesser form of scrutiny is appropriate because the Larsens can say that they disapprove of same-sex marriage in some other way. But just like New Hampshire could not "require [drivers] to display the state motto" Live Free or Die on their license plates, even if they could disavow the motto through "a conspicuous bumper sticker," so too would a disclaimer here be inadequate. The reason is that the constitutional "protection of a speaker's freedom would be empty" if "the government could require speakers to affirm in one breath that which they deny in the next." …

[G.] [In Rumsfeld v. FAIR, l]aw schools, which invited and hosted recruiters of all types, objected to hosting the military because of a disagreement with policies that excluded gays and lesbians from serving. Federal law, however, required the schools to give equal access to military recruiters or risk losing federal funding. The schools sued, claiming that they had a First Amendment right to exclude military recruiters from campus. The Supreme Court disagreed, even if the schools had to "send e-mails [and] post notices on bulletin boards on [the recruiters'] behalf"—both "elements of speech."

The Supreme Court upheld the law because it did not interfere with the law schools' expression or coopt their speech. Simply hosting recruiters was not speech, according to the Court, so the "accommodation of a military recruiter's message" did not "sufficiently interfere with any message of the school[s]." Besides, just like the mall owner in PruneYard, the schools "remain[ed] free … to express whatever views they may have [had] on the military's congressionally mandated employment policy." Cases like Hurley, by contrast, involved unconstitutionally compelled speech because "the complaining speaker's own message was affected by the speech it was forced to accommodate."

The facts of the case, as pleaded by the Larsens, are much closer to Hurley than to … FAIR. Rather than serving as a forum for the speech of others, the Larsens' videos will carry their "own message." The MHRA interferes with their message by requiring them to say something they otherwise would not. The Larsens, then, lose "the autonomy to choose the content of [their] own message," which violates the "cardinal constitutional command" against compelled speech….

[H.] Consistent with the Supreme Court's instruction that antidiscrimination laws "do not, as a general matter, violate the First … Amendment[],"our holding leaves intact other applications of the MHRA that do not regulate speech based on its content or otherwise compel an individual to speak. But when, as here, Minnesota seeks to regulate speech itself as a public accommodation, it has gone too far under Hurley and its interest must give way to the demands of the First Amendment.

Judge Jane Kelly dissented, arguing among other things:

[T]he court tries to recharacterize Minnesota's law as a content-based regulation of speech, asserting that it forces the Larsens to speak and to convey a message with which they disagree. Neither is true. The Larsens remain free to communicate any message they desire—about same-sex marriage or any other topic—or no message at all. What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others.

And make no mistake, that is what today's decision affords them license to do. The Larsens concede that they want to operate a public accommodation that serves only opposite-sex couples. Minnesota's law prohibits that conduct just as it would prohibit any hotel from denying its services to an individual based on race, any store from refusing to sell goods to a person based on religion, or any restaurant from charging higher prices to women than to men. That the service the Larsens want to make available to the public is expressive does not transform Minnesota's law into a content-based regulation, nor should it empower the Larsens to discriminate against prospective customers based on sexual orientation….

It is well established that videos are a form of speech protected by the First Amendment. But the First Amendment's right of free speech is "not unlimited." "[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech." Such restrictions on speech are valid, "provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information."

Courts draw a clear line "between content-based and content-neutral regulations of speech." "Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." A content-based law "'on its face' draws distinctions based on the message a speaker conveys," or has the purpose of suppressing speech "because of disagreement with the message it conveys." Regulations that "target speech based on its communicative content … are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Similarly, when the government compels an individual to engage in speech the individual otherwise would find objectionable, this ordinarily constitutes a content-based regulation triggering strict scrutiny.

By contrast, a law is content neutral if it "serves purposes unrelated to the content of expression … even if it has an incidental effect on some speakers or messages but not others." "Government regulation of expressive activity is content neutral so long as it is 'justified without reference to the content of the regulated speech.'" A content-neutral regulation is subject to intermediate scrutiny, meaning it must merely be "narrowly tailored to serve a significant governmental interest." In general, statutes "directed at commerce or conduct" do not violate the First Amendment, even if they impose "incidental burdens" on speech or inherently expressive conduct.

The MHRA neither compels speech nor targets speech based on its content. In fact, the law says nothing about speech at all. The Public Accommodations Provision prohibits "deny[ing]" individuals the full and equal enjoyment of goods and services; the Business Accommodation Provision speaks of "refus[ing] to do business with" or "discriminat[ing]" against persons based on a protected characteristic. Neither provision "on its face" regulates speech or draws distinctions based on a speaker's message. Instead, the law "regulates conduct, not speech." "It affects what [businesses] must do—afford equal [treatment] to [customers]—not what they may or may not say." …

By the court's logic, because the MHRA prohibits the Larsens from operating their public accommodation to provide only services to opposite-sex couples, it "compel[s] them to talk about a topic they would rather avoid—same-sex marriages." The court attempts to analogize the MHRA to the statute challenged in Tornillo, a law that required newspapers to print a free reply to any candidate "assailed" by the paper. But that analogy fails from the start. That a law regulating the content of a newspaper was deemed a content-based regulation of speech has no bearing on whether a law regulating discrimination in places of public accommodation also so qualifies.

The court's opinion relies extensively on Hurley, which dealt with application of Massachusetts's public accommodations law to a privately organized parade. But the court's discussion of Hurley omits a few crucial details. In Hurley, the Supreme Court made clear that a public accommodations law "does not, on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds." … [T]he Court also stated that public accommodations laws "are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments." Of course, if public accommodations laws were content-based regulations of speech, they would not "as a general matter" be constitutional. Instead, they would be "presumptively unconstitutional."

The  Supreme  Court  ultimately  concluded that applying the public accommodations law to the parade in Hurley did not withstand constitutional scrutiny. But it did so because Massachusetts was attempting to apply the law "in a peculiar way." A parade is, by definition, an expressive association. That a parade's participants "are making some sort of collective point, not just to each other but to bystanders along the way," is what distinguishes a parade from a mere stroll down the street. The issue in Hurley was not whether gay and lesbian individuals could march in the parade—they were welcome to do so—but whether a particular gay and lesbian organization would be permitted to march in the parade with a banner that organizers felt contravened the parade's message. Applying the statute to require the parade sponsors to allow the banner made a public accommodation out of "the sponsors' speech itself," and treated the sponsors' exclusion of the message as discrimination against a class. By applying the law in a way that "alter[ed] the expressive content of their parade," Massachusetts violated the parade sponsors' autonomy as speakers.

Hurley thus stands for the proposition that a facially neutral law may be subject to strict scrutiny if it is applied in a way that materially burdens the speaker's "autonomy to choose the content of his own message." In Dale, the Supreme Court similarly applied strict scrutiny to a facially neutral New Jersey antidiscrimination statute that required the Boy Scouts to retain a gay scoutmaster because doing so "would significantly burden the organization's right to oppose or disfavor homosexual conduct," which was one of "the ideas that the organization sought to express."  In cases where the law's application did not significantly impair the ability of the speaker to convey his chosen message—such as when the expressive association's basic goals are unrelated to the desired exclusion—the Court has found no First Amendment violation. For example, in Roberts, the Supreme Court declined to hold the MHRA invalid because "the Jaycees … failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of expressive association." In each case finding a compelled-speech violation, the violation "resulted from the fact that the complaining speaker's own message was affected by the speech it was forced to accommodate."

Here, taking the complaint as true, the Larsens cannot show that viewers of TMG's wedding videos would be likely to understand them to be expressions of the Larsens' "particularized message" about marriage. The complaint alleges that the Larsens want to be for-profit wedding videographers, not independent filmmakers. Although an artistic endeavor, wedding videos—like other expressive wedding services—do not primarily reflect the views of the videographer, but of the couple getting married.

The Larsens acknowledge as much in their complaint: "When an engaged couple asks the Larsens to help them celebrate their marriage, the Larsens want to tell a story of their love and commitment …." Although the Larsens may exercise editorial control over TMG's services, it is still ultimately the couple's story that is being told, not that of the Larsens. "[R]easonable observers would not perceive [the Larsens'] provision of … services for a same-sex wedding ceremony as an endorsement of same-sex marriage." By selling its services to the public, TMG "functions, in essence, as a conduit for the speech of others," necessarily subordinating the Larsens' own messages to those of their customers. For better or worse, "[o]nce [TMG] enters the marketplace of commerce … it loses the complete control over its [speech] that it would otherwise enjoy if it confined its affairs to the marketplace of ideas." Whereas the application of Massachusetts's law in Hurley improperly transformed the parade sponsors' speech into a public accommodation, here it is the Larsens who are affirmatively declaring their speech to be a public accommodation by selling their videography services on the open market….

The court's opinion warns, supra at 10, that applying intermediate scrutiny to the MHRA would invite government regulation of "wide swaths of protected speech." Hardly. A law telling an independent artist what pictures to paint or a newspaper what articles to publish would still be subject to strict scrutiny. But an independent artist who chooses what to paint and then sells the finished product is not the same as a boardwalk cartoonist who offers his services to any passing beachgoer. If the cartoonist refuses to paint the portrait of an interracial couple or a woman in a hijab, the state's regulation of that expressive conduct via a content-neutral statute does not trigger strict scrutiny. The Larsens are free to use their talents to create independent films about marriage that express any message they choose, and they are free to sell those films to the public. But if they offer wedding-video services to the public, they must abide by public accommodations laws like the MHRA.

Because the MHRA is content neutral and is not being applied in a manner that substantially burdens the Larsens' right to express their own message, it is subject to intermediate scrutiny….

Although intermediate scrutiny is the applicable standard, the MHRA would survive even strict scrutiny…. In general, public accommodations laws further compelling state interests of eradicating discrimination and ensuring residents have equal access to publicly available goods and services…. If eradicating discrimination based on race or sex is a compelling state interest,thensoisMinnesota'sinterestineradicatingdiscriminationbasedonsexual orientation….

The Larsens argue that no compelling interest is served by applying the MHRA to TMG because plenty of other businesses are happy to provide wedding- video services to same-sex couples. The argument that victims of discrimination are free to go elsewhere carries little force. Antidiscrimination laws like Title II and the MHRA were not passed to ensure that members of historically discriminated groups had access to some places of public accommodation. They were passed to guarantee equal access to all goods and services otherwise available to the public. "Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color." Even accepting the premise of the Larsens' argument, applying the MHRA to wedding- related services across Minnesota would still further the state's compelling interest in eradicating sexual-orientation discrimination in Minnesota's rural areas. Although many alternative wedding venues and services may be available in larger cities, the same may not be true in small towns. The pain of discrimination is undoubtedly more severe when it comes from the only videography service in the area.

The court's opinion asserts that while regulating discriminatory conduct may be a compelling state interest, regulating the content of the Larsens' speech is not. But the MHRA regulates only discriminatory conduct; the sole reason that the Larsens' expression is even tangentially affected by the law is because the Larsens make their speech available as a service for other members of the public to hire. When the government requires those services to be available to everyone, it is not forcing them to speak. Likewise, it is not an abridgment of the Larsens' freedom of speech to prohibit them from posting messages on TMG's website stating that they do not serve same-sex weddings….