Free Speech

New Article on Compelled Speech, Forthcoming in the Texas Law Review

I'd love to have people's comments this week, since I owe the journal a final draft Saturday the 24th. [UPDATE: Just to be clear, the article aims to provide a coherent framework for understanding the current precedents, not to come up with new rules from scratch.]


You can see a draft here [UPDATE: link fixed], but here's the Introduction:

Speech compulsions, the Court has often held, are as constitutionally suspect as are speech restrictions: "[T]he First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say."[1] In the Court, the doctrine dates back to the 1943 flag salute case,[2] which held that "involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence."[3]

In state courts, it dates back even earlier: The very first state statute struck down on free speech grounds—in 1894, by the Georgia Supreme Court—was a "service letter" statute under which employers were obligated to give dismissed employees a letter explaining the reason for the dismissal.[4] "Liberty of speech and of writing is secured by the constitution, and incident thereto is the correlative liberty of silence," held the court.[5]

And the doctrine remains strong today: just this last Term, it was powerfully reaffirmed in Janus v. American Federation of State, County & Municipal Employees, Council 31 (AFSCME)[6] and National Institute of Family & Life Advocates (NIFLA) v. Becerra[7] and was relied on by Justice Thomas in his concurrence (joined by Justice Gorsuch) in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.[8]

Yet, however emphatically stated and deeply rooted the broad principle may be, its details are often hard to pin down. For instance:

  1. Janus holds that the First Amendment generally bars compelling people to turn over money to a private organization that will use it for speech.[9] But Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR),[10] Turner Broadcasting System, Inc. v. FCC,[11] and PruneYard Shopping Center v. Robins[12] hold that compelling people to turn over use of their property to a private organization that will use it for speech is just fine.[13] What's the difference?
  2. PruneYard upheld a requirement that large shopping malls let the public speak on their property, partly because "no specific message is dictated by the State to be displayed on appellants' property. There consequently is no danger of governmental discrimination for or against a particular message."[14] But FAIR upheld a requirement that law schools allow military recruiters to speak on their property, which did involve governmental discrimination for a particular message.[15]
  3. NIFLA held that the government can't require pregnancy crisis centers to inform patients about the availability of low-cost abortions.[16] But Planned Parenthood of Southeastern Pennsylvania v. Casey[17] held that the government can require doctors who perform abortions to "inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the 'probable gestational age of the unborn child.'"[18]
  4. The plurality in Pacific Gas & Electric Co. v. Public Utilities Commission of California[19] suggested that requiring someone to distribute another's speech may be unconstitutional when it pressures the distributor to respond to that speech.[20] Yet that pressure was likely present in FAIR, but the Court upheld the compelled hosting in that case.[21]

And, partly because of these internal tensions, the doctrine contains major uncertainties:

  1. Does requiring people to create speech—such as when a commercial photographer is required to photograph same-sex weddings if she photographs opposite-sex weddings—constitute impermissible speech compulsion?[22]
  2. May the government require, say, Twitter or Facebook to host user pages without discrimination based on political ideology (or religious ideology)?
  3. When, if ever, may the government compel people to convey facts to the government—for instance, to answer census questions, to file tax returns, to give information on driver's license applications,[23] to report to the police certain crimes that they have observed, and the like—or to third parties?[24]
  4. Is it constitutional for the law to give access rights to particular speakers and not to others? May states, for instance, mandate that private shopping malls let people gather signatures for ballot measures but not for other causes? May states mandate that homeowners' associations let unit owners display American flags in common areas without similarly requiring the associations to tolerate other symbols?[25]

In this Essay, I'll try to summarize the law, where it's settled, and identify the internal tensions, where they exist. Indeed, most sections will start with a (admittedly oversimplified) black-letter summary. I will take the existing Supreme Court precedents as given because I want to be helpful to lawyers, judges, and scholars who want to analyze particular controversies within the legal framework that the Court has established. But the analysis should also offer plenty to those who want to critique the framework or suggest that some parts of it need to be reversed.

In particular, I will suggest that the compelled speech doctrine actually contains two separate strands:

  1. It forbids speech compulsions that also restrict speech—for instance by compelling a newspaper editor or a parade organizer to include certain material, and thus restricting them from creating precisely the newspaper or parade that they want to create.
  2. It also forbids some "pure speech compulsions," which do not restrict speech but which unduly intrude on the compelled person's autonomy.

The important questions under each strand tend to be different. In the first category, for instance, the contested question is often whether a particular aggregation of speech is what I call a "coherent speech product" (e.g., the floats in a parade) through which its organizer speaks, or an array of unrelated speech (e.g., the channels on a cable system) that is solely the speech of the separate speakers. In the second category, the contested question often turns on whether some compulsion is more like a compulsion to speak (presumptively unconstitutional) or more like a compulsion to host others' speech (often constitutional).

And the restraints on government power often differ under the two strands as well: Compelling people to include facts in their coherent speech products (say, in their newspapers), thus altering the content of their speech, is generally unconstitutional. Pure speech compulsions that require people to reveal facts in a stand-alone way, on the other hand, may well be largely permissible. I will discuss these two categories in Parts I and II and then turn to two general exceptions to the protections offered under both strands—the exception for speech integral to conduct (Part III) and the special rules for commercial advertising (Part IV).

A terminological note: throughout, I will often speak of a compulsion as being "presumptively unconstitutional." This presumption could be rebutted by a showing that the compulsion passes strict scrutiny,[26] or perhaps (in certain areas of free speech law) "exacting scrutiny" or a similar doctrine. Likewise, when the government is acting in a special role that lets it impose extra speech restrictions—as educator, employer, landlord, regulator of the airwaves, and the like—it may have some extra power to compel speech as well.[27]

The question we'll discuss in this Essay will generally be: When does a government action become a speech compulsion subject to serious First Amendment scrutiny, usually akin to the scrutiny applied to similar speech restrictions? How that scrutiny should be applied is a matter left to other articles.

[1].Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796–97 (1988).

[2].W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943).

[3].Id. at 633.

[4].See Wallace v. Ga., C. & N. Ry. Co., 22 S.E. 579, 579–80 (Ga. 1894); see also Atchison, T. & S.F. Ry. Co. v. Brown, 102 P. 459, 461 (Kan. 1909) (also holding unconstitutional a state statute obligating employers to provide written explanation for dismissal of employees); St. Louis Sw. Ry. Co. of Tex. v. Griffin, 171 S.W. 703, 705–06 (Tex. 1914) (same). But see Cheek v. Prudential Ins. Co. of Am., 192 S.W. 387, 392–93 (Mo. 1916) (taking the opposite view), aff'd on other grounds, 259 U.S. 530, 543–48 (1922) (the last Supreme Court case holding that the Free Speech Clause is not incorporated against the states under the Fourteenth Amendment). The laws aim at the practice, familiar to readers of 18th and 19th century English and American novels, of dismissing an employee "without a character." See, e.g., 1 Samuel Richardson, Pamela: or, Virtue Rewarded 38 (2d ed. 1741) ("I hope he will let good Mrs. Jervis give me a [c]haracter, for fear it should be thought I was turn'd away for [d]ishonesty.") (emphasis omitted). Alleging suspected misconduct on a dismissed employee's part would leave the employer open to a defamation lawsuit, but dismissing the employee without a character could implicitly convey the same message without a risk of liability. The service-letter statute aimed to prevent this and to require employers to provide a true statement of the reasons for dismissal, enforced by the statute on the one side and the risk of defamation liability for false statements on the other.

[5].Wallace, 22 S.E. at 579.

[6].138 S. Ct. 2448, 2460, 2464, 2486 (2018).

[7].138 S. Ct. 2361, 2377–78 (2018).

[8].138 S. Ct. 1719, 1740–48 (2018) (Thomas, J., concurring in part and concurring in the judgment).

[9].Janus, 138 S. Ct. at 2486.

[10].547 U.S. 47 (2006).

[11].512 U.S. 622 (1994).

[12].447 U.S. 74 (1980).

[13].See infra subpart I(B). I use "people" here generically to include institutions, and the Court has generally not focused in First Amendment cases on whether the objector is an individual (as in PruneYard, which was apparently owned by one man) or an institution (such as the universities in FAIR, the media businesses in Turner or Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the nonprofits in NIFLA, or the nonmedia business in Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986)).

[14].PruneYard, 447 U.S. at 87.

[15].FAIR, 547 U.S. at 59–60. The statute in FAIR required law schools to host recruiters as a condition of getting federal funds, but the Court didn't rely on the government's power as subsidizer—it held that the requirement could have been "constitutionally imposed directly" by Congress as a categorical command rather than as a funding condition. Id.

[16].Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371–76 (2018).

[17].505 U.S. 833 (1992).

[18].Id. at 881, 884. The NIFLA opinions at least debated this potential tension; the first three tensions identified in the text have not been squarely confronted by the Court.

[19].475 U.S. 1 (1986).

[20].Id. at 15–16.

[21].See infra subpart I(B).

[22].See discussion infra subpart II(E).

[23].Note that this can't be distinguished on the grounds that the compelled speech in driver's license applications is a condition of getting a government benefit (the right to drive on publicly owned roads). Wooley v. Maynard, 430 U.S. 705 (1977), applied the compelled speech doctrine even though the requirement of having a state-motto-bearing license plate was also a condition of driving on public roads. Id. at 715–17.

[24].See discussion infra subpart II(D).

[25].See discussion infra subsection II(C)(4)(c).

[26].See, e.g., Citizens United v. FEC, 558 U.S. 310, 340 (2010).

[27].Thus, for instance, just as the government may restrict speech as part of a criminal sentence, or a probation condition, it may be able to compel speech in those contexts as well. See, e.g., United States v. Clark, 918 F.2d 843, 848 (9th Cir. 1990), overruled on other grounds by United States v. Keys, 133 F.3d 1282 (9th Cir. 1998); People v. Corona, No. D054887, 2010 WL 769150, at *3–4 (Cal. Ct. App. Mar. 8, 2010); State v. K.H.–H., 374 P.3d 1141, 1146 (Wash. 2016). Likewise, Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969), upheld the Fairness Doctrine for over-the-airwaves broadcasting, but this is because broadcasting speech is generally less protected by the First Amendment. See, e.g., FCC v. League of Women Voters of Cal., 468 U.S. 364, 380, 402 (1984); FCC v. Pacifica Found., 438 U.S. 726, 748–50 (1978). The government also doubtless had broad power to compel speech by its employees, see, for example Slocum v. Fire & Police Comm'n of E. Peoria, 290 N.E.2d 28, 33 (Ill. App. Ct. 1972) (holding that a Police Department's requirement that its officers wear an American flag emblem on their uniform did not violate their First Amendment rights), though perhaps not unlimited power, see for example, Ops. of the Justices to the Governor, 363 N.E.2d 251, 255 (Mass. 1977) (concluding that a bill requiring teachers to lead their public school classes in reciting the Pledge of Allegiance would violate their First Amendment rights).

NEXT: More Notes on the Historians' Brief

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  1. “I’d love to have people’s comments this week, since I owe the journal a final draft Saturday the 24th.”

    Warm them up with a joke. Ethnic/racial jokes are best. Don’t limit yourself to groups you belong to – have some fun at the expense of other groups, too.

    Use plenty of profanity about particularly inane decisions by the Court.

    Citation rules are living documents, feel free to experiment with citation format.

    I hope this helps.

  2. OK, seriously, some disclosure rules are for people selling goods and services. Without the seller providing certain information, the consumer may be misled by implication. Eg, buying food without knowing what’s in it (but it must be healthy, look at the nature scenes painted on the package!), donating to a charity without knowing that a bunch of the donation goes to administrative expenses and salaries rather than rescuing the cute puppies in the brochure, etc.

    There’s a different situation where there’s no danger of fraud. The mall owner who says “shop or get out, don’t distribute your literature here” isn’t misleading any consumers as to the nature of the products sold at the mall. The Jehovah’s Witness who refuses to salute the flag isn’t engaged in dubious consumer practices, he’s showing a sincere conviction. etc.

    1. Consumers can always refuse to buy food which does not list ingredients or breakdown of sugar, fat, protein, carbs, etc, or refuses to let independent auditors verify it. Incorrect or misleading labels are theft by fraud. Donators can similarly refuse to donate to charities which do not disclose their overhead or refuse to let independent auditors verify it, and again, false information is theft by fraud.

      I would go so far as to say that if a charity shows cute puppies as an implication of what they do, and it turns out otherwise even without explicit claims, that is fraud too, but that is neither here nor there for this discussion.

    2. I’ve never really understood the whole “freedom doesn’t matter if it can lead to minor consumer confusion” argument.

      I mean, freedom matters even when it can lead to nuclear destruction of the planet, why is it supposed to stop mattering if I won’t know whether my Ho-Hos contain sodium benzoate?

      Obviously, every proposed constriction of freedom has some (supposed) benefit. Why are the highly dubious benefits of commercial-disclosure laws supposed to be special?

      1. Food is a bit of a different issue, not just because of the fraud risk, but also because of food allergies and other health impacts. That’s been stretched in recent years, but the basic concept is fine.

        Knowing that your ‘Peach Poppers’ were fried in peanut oil is important to the 1-2% of people that might die upon consuming them.

  3. I’d have more comments, but the link to the full article yielded a server error.

  4. Some initial thoughts from the summary:

    1. The Georgia Supreme Court decision essentially struck down a general employment rule (you can only fire employees for cause) by converting it into a free speech issue (requiring people to state a cause violates the first amendment.) I think this well illustrates the dangers of over-use of the first amendment to strike down legislation disfavored on essentially political grounds. The only way peiple can know if a cause exists is if it’s articulated, so a fire-for-cause-only law necessarily requires that a cause be articated at some point. Using this fact to force employment-at-will on the public misuses the First Amendment. The fact of the matter is, nearly all conduct is effected through speech, so absolute speech protection insulates nearly all conduct. If the Georgia Supreme Court’s position was correct and if it was willing to apply it consisently, then every Statute of Frauds, indeed every law requiring a written document or particular forms in order to affect a particular transaction, every law requiring the submission of plans to receive permits or an application to receive a license, examinations or theses to receive a degree, etc. etc. etc., would all violate the First Amendment.

  5. Some initial thoughts from the summary:


    2. In many of the cited contradictions, there is a clear distinction between the cases articulated by the Supreme Court that, if accepted, avoids or resolves the contradiction. One can agree or disagree with the distinction, but it’a there. Hopefully the article goes into more detail than the summary. If it doesn’t address the resolving distinctions, that’s a serious flaw.

    In general I don’t think the state of the law is as muddled as is being suggested.

  6. No comments on him owing a paper on compelled speech? Really?

  7. “But FAIR upheld a requirement that law schools allow military recruiters to speak on their property, which did involve governmental discrimination for a particular message.”

    I don’t think that this is a fair characterization of FAIR.

    The federal government in this case, is NOT discriminating for a particular message, it is speaking it’s own message.

    The decision may well be wrong as applied to private universities, but for very different reasons than presented here.

    The federal law in question simply requires that universities, public or private, that receive federal funding and have created limited public forums for potential employers to speak to students allow a certain specific part of the federal government to speak to the students as a potential employer on equal footing with other employers.

    1. Fair is often misrepresented as a free speech issue.

      While it was decided as a free speech case, as your last paragraph notes, It was really a contract law case.

      In exchange for $ from one person, then you will do X

    2. allow a certain specific part of the federal government to speak to the students as a potential employer on equal footing with other employers

      Not exactly, if by “equal footing” you mean by being subject to the same rules. The Court found (without being asked) that the law required if any other recruiters were permitted access under a nondiscrimination policy then military recruiters must also be given access, whether they satisfy the policy or not.
      I would agree though that it wasn’t so much discrimination for a particular message as it was for a particular speaker.

    3. Matthew Slyfield: It turns out that Rumsfeld v. FAIR held that:

      This case does not require us to determine when a condition placed on university funding goes beyond the “reasonable” choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.

      (I’ve put up a new post reminding people about that.)

      1. EV,

        I don’t think that comes anywhere near making the statement that FAIR “did involve governmental discrimination for a particular message.” true. It’s about a particular speaker, not any particular message. The fact that the funding issue wasn’t critical to the court’s decision does nothing to change that.

        1. Whoops, sorry, my response was actually to joe_dallas, but I wrongly labeled it as responding to you. Your comment indeed mostly makes a different argument.

          But I think that argument is also not quite sound. The Solomon Amendment deliberately mandated access to military recruiting (a particular kind of speech), precisely because of its content. It didn’t just give access to, say, government speakers, but to military recruiters engaged in recruiting. Just as Reed v. Town of Gilbert said that a speech restriction is content-based when it is “justified with[] reference to the content of the regulated speech,” or was “adopted by the government ‘because of disagreement with the message [the speech] conveys,'” so here the compelled access is content-based because it is justified with reference to the content of the favored speech, and was adopted by the government because of agreement with the message the speech conveys.

          Congress wanted to make sure that students heard military recruiting as well as other kinds of recruiting; the Court said that’s constitutional; but it’s constitutional despite its favoring a particular content, not because it’s somehow content-neutral.

          1. I can’t quite sign on to this, “military recruitment” to me is speech whose subject matter is recruitment and that is spoken by the military, and the Solomon Amendment didn’t favor recruitment speech it favored a recruitment speaker. But if we get beyond that, wasn’t the holding that the amendment was constitutional because it wasn’t a content restriction at all, it was a conduct restriction?

            1. correction, “because it wasn’t a speech restriction at all, it was a conduct restriction?”

            2. I believe the holding that it was a regulation of conduct that only incidentally affects speech applied to the requirement to assist the military by sending emails and posting notices. The other requirement to host military recruiters was upheld because it did not affect the school’s message.

          2. “The Solomon Amendment deliberately mandated access to military recruiting (a particular kind of speech) precisely because of its content. It didn’t just give access to, say, government speakers, but to military recruiters engaged in recruiting.”

            No, military recruiters are a particular speaker namely the military as employer. How is there message fundamentally different from any private sector corporate recruiter?

            1. Wouldn’t the message to join the military, rather than taking a job with a private firm, be at least in part based on the content that the military is a good place to work?

              1. Well, yes, but “our company is a good place to work” is fundamentally part of the message of every corporate recruiter.

                No private sector recruiter is going to go in with the message “our company is a shitty place to work, but we’ll pay you lots of money to put up with it.”. That may well be true in some cases, but no recruiter worth anything will admit that to potential recruits.

                1. The law school objected to the message that the military is a good place to work, while endorsing other places to work. Requiring them to host the former message strikes me as a content-based regulation.

                  1. It doesn’t change much if anything, but the basis of the law schools’ objection was the conduct of the military, in that it discriminated against gays. The Solomon Amendment overrode that determination for military recruiters, not for any non-military recruiter excluded by the same policy.

          3. The Constitution explicitly grants Congress the right to raise armies, of which recruiting is an essential part. Wouldn’t that give it a way around the 1st Amendment claims anyway?

  8. The only situations where there is actual govt compulsion of speech (action) are: registering a child at birth, filing taxes, the registering for the draft (or the current Selective Service System).

    Everything else is voluntary; i.e. if you want to have/do A then you must do B.

    1. That seems like a particularly stark black-or-white world: to sell food, you must include food labels; you call that voluntary? These are just as voluntary: if you want children, you must register them; if you want to be paid, you must file taxes; and if you want to live past 18, then you must register for the draft.

      None of those are anywhere near voluntary.

      1. The Court is on Remember’s side: For instance, Wooley v. Maynard (1977), made clear that the government couldn’t require you to display a motto as a condition of being able to drive on the public highways. (There are some rules that allow some conditions on the receipt of government benefits, such as funding or salaries, but those are largely limited to that sort of funding or access to property, not including the public streets.)

        1. Dang, I was just trying to be sarcastic, not correct!

      2. “None of those are anywhere near voluntary.”

        If you wanna drive on the public roadways, you must agree to take the field sobriety test, and refusing to take the field sobriety test carries the same penalty as failing it.
        If you wanna get on an airplane, you have to provide the government with enough information to identify you, and let them probe you at the airport.
        If you wanna own nuclear weapons, you have to first take over some foreign government and then use its resources to develop them. And the U.S. government may just say you already have them, and invade your country and take it away from you, even if you’re already letting them inspect all the places where you might have made such a weapon and there’s no evidence you’re even working on developing one.

        Life just isn’t fair.

  9. “Does requiring people to create speech?such as when a commercial photographer is required to photograph same-sex weddings if she photographs opposite-sex weddings?constitute impermissible speech compulsion?”

    To what extent does a waiver doctrine apply?
    I would think that it would cover, say, the various state “blue sky” laws and the mandatory disclosures required by SEC to sell securities. Anyone who doesn’t want to make the required disclosures can simply choose not to offer securities, and they no longer have any required disclosures. It also covers broadcasters, since broadcasters are using the public’s airwaves, the public can require that broadcasters operate in the public convenience, etc.
    It’s a little shakier to extend it to business licensure generally, but it does then answer the “I don’t wanna make these people a cake because they’re gay” question, if the state protects gay people from discrimination by businesses.

    1. James Pollock: What would you say to an argument that, “anyone who doesn’t want to publish replies to his criticisms of candidates can simply choose not to sell a newspaper, or choose not to criticize candidates” (compare Miami Herald v. Tornillo, which struck down a requirement that newspapers publish replies to criticisms of candidates)? “Anyone who wants to have a parade must include any floats that show up” (compare Hurley, which struck down a requirement that parades not discriminate against floats that identify themselves as connected with gay/lesbian/bisexual groups)?

      Or when it comes to speech restrictions, rather than compulsions, an argument that “Anyone who wants to be a commercial photographer must put up a sign saying ‘I love Donald Trump,'” or for that matter “… ‘Same-sex weddings are wonderful'”?

      1. “What would you say to an argument that, “anyone who doesn’t want to publish replies to his criticisms of candidates can simply choose not to sell a newspaper, or choose not to criticize candidates””

        That sounds true. Is it not true? That was roughly the law from the 1930s to the 1980s, if you substitute “broadcaster” for “newspaper publisher”. The “Fairness Doctrine” was repealed politically, not judicially. AM talk radio was highly biased one way, politically, and the benefactors chose to surrender fairness doctrine because they were benefitting from unfairness, and expected to continue to do so.

        But it isn’t responsive to my question.

        1. CONT’D
          I don’t find an interpretation that the first amendment absolutely prevents compelled speech persuasive. I also don’t think it provides no protection at all. So, the question becomes “how and where are lines to be drawn?”
          Restrictions of first amendment protection are almost all things where a compelling government purpose requires it.

          Blue-sky laws (restrictive) and required disclosure regulations (most of the SEC’s requirements) both seem reasonable to me, though they limit speech freedom in an absolute sense.

          I also have less concern about compelled speech when the compelled speech is true. So investment managers are required to state (truthfully) that past results don’t guarantee future results will be similar, weight-loss product ads have to disclose that the attractive person in the ad is an actor and/or that the results weren’t typical, and pharmaceutical manufacturers must reveal possible side effects that are known to have occurred. I think the “crisis pregnancy center” case came out wrong, because the centers weren’t required to say that abortions are awesome, just that they’d never be offered one at the CPCs that didn’t offer them.

  10. I haven’t had an opportunity to read the draft article yet but I did want to point folks to the First Amended Complaint in a civil rights lawsuit I’m pursuing that appears to be on topic. The lawsuit currently names a number of county actors as defendants. It will be amended soon however to include Customs and Border Protection (CBP) regarding unlawful actions at Border Patrol roadblocks operating inside the country away from the border or its functional equivalent. One of the claims we are pursuing is a violation of the 1st amendment for attempting to compel speech during roadblock stops (seizures under the 4th amendment) and retaliating against individuals who exercise their right to remain silent. The First Amended Complaint is available online at:

    By navigating to the link on the right hand side that reads, “Between a Stonegarden and A Hard Place”, you
    will find documentation filed with the District Court for the District of Arizona, including the First Amended Complaint, along with general information regarding the events leading up to the lawsuit.

    When the Second Amended Complaint is filed, it will further elaborate on the 1st Amendment issue along with expanding the named parties. CBP wasn’t named initially because we were waiting for a formal denial to my federal tort claim. Now that we have received the denial, the federal agency can be formally added to the suit.

  11. Am I correct in concluding that Elane Photography is a pure speech compulsion rather than a restriction of speech? If I have that correct, I take it you arguing that a compulsion to create speech should be treated as a compulsion to speak rather than a compulsion to host. But if you are wrong on this point and it is a compulsion to host, does that change how you think the case should be decided?

  12. All I ask is that if non-discrimination laws are unconstitutional violations of the First Amendment when they protect gay people, that they must also be unconstitutional violations of the First Amendment when they protect Baptist people.

    And you should not hide this obvious implication, you should explicitly state it.

    1. Eugene is not arguing that anti-discrimination laws are facially unconstitutional. He is arguing they are unconstitutional as applied to (for example) photographers being required to serve the wedding of a same-sex couple. I also believe Eugene argues the law is unconstitutional as applied to a photographer being required to serve a Baptist wedding.

      1. He is arguing they are unconstitutional as applied to (for example) photographers being required to serve the wedding of a same-sex couple.

        Right, because complying with non-discrimination laws is such an unconstitutional burden for the baker, but it’s right-as-rain for the butcher and candle-stick maker.

        Or to put it another way, any argument that hinges on whether a given service is “art” or “speech” or not is a terrible, vague, just plain no-good argument.

        I also believe Eugene argues the law is unconstitutional as applied to a photographer being required to serve a Baptist wedding.

        The fact that you had to use the word “believe” is part of the problem. Make it explicit. Because if it isn’t explicit, it won’t happen.

        1. “Or to put it another way, any argument that hinges on whether a given service is “art” or “speech” or not is a terrible, vague, just plain no-good argument.”

          I disagree, or at least, don’t follow you quite as far down the lane as you’ve gotten.

          The problem with most complaints about “I don’t wanna have anything to do with a gay wedding” is that once you’ve sold the goods, they aren’t yours any more and you don’t really have any right to tell the new owner what they can do with it.
          So the gay-averse photographer has a choice: He can try honesty… “Look, I don’t like being around gay people, and I’m afraid that my squeamishness would impact the quality of my work”… but then word might get around that he’s a bigoted jerk, and people who aren’t gay might decline to hire him for being a bigoted jerk. It’s honest, but honesty comes with a price.
          So, he’s more likely to try plan B: “I’d love to photograph your gay wedding, but God told me not to.” Now he’s not the bigot, God is, and other religious folk, seeing one of their own under fire, are likely to come to the poor oppressed bigot’s assistance. Cue the caterwauling about how those darn Hollywood libruls were gonna make me endorse a gay marriage, and oh, by the way, there’s a gofundme page if you want to support my struggle for religious freedom.

          1. The photographer is primarily selling a service, not goods and actually participates in the wedding itself.

            Somewhat similar with florists and wedding cake bakers. While there are cheaper arrangements/cakes that you can simply pick up from the florist/baker yourself, in the majority of cases, the florist contracts to deliver the flowers and make final arrangements for both the wedding venue and the reception venue and the baker contracts to deliver the cake* to the reception, so there is service as well as goods involved and some level of participation in the celebration.

            Simple sheet cakes are one thing, but the large multi-tiered wedding cakes are difficult to transport and handle, and that is best left to professionals if you want to ensure disaster doesn’t strike before the reception.

        2. Eugene thinks the baker, butcher and the candle-stick maker each have to comply with anti-discrimination laws. He distinguishes the photographer because photography has been historically protected. You may or may not agree with Eugene’s argument, but it is easy to apply and not at all vague.

          Eugene is on record as saying the photographer has a constitutionally-protected right not to serve an interracial wedding. Or one with a disabled person. Or a wedding between a Jew and non-Jew. I would think his argument covers a Baptist wedding too.

  13. Re: (1), in Janus the private organization sought to speak _on behalf of_ those forced to pay. It wasn’t just any message, it was the message that they _personally_ should get more (and others less). The message could cause them personally to be seen as greedy. In PruneYard, the students weren’t seeking to speak _on behalf of_ the mall.

    Also, property owners have effective means to counter any impression that they endorse the message: as owners, they can post clear signs to that effect, right next to the compelled messaging area. Money owners don’t have that option.

  14. “67. [Colleges] may occasionally select prospective employers [to recruit on campus] … based on the organization’s practices, such as its nondiscrimination policies. But they generally don’t select based on the prospective employer’s ideology.” ? isn’t non-discrimination an ideology?

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