Free Speech

Fourth Circuit strikes down North Carolina’s “ag-gag” law under the First Amendment

/ Free Speech, Trespass

People for the Ethical Treatment of Animals (PETA) v. N.C. Farm Bureau Federations, Inc., 2023 WL 2172219 (4thCir. 2023) In a very complicated ruling, the Fourth Circuit has struck down North Carolina’s “ag-gag” law that prohibited employees from engaging in “undercover animal-cruelty investigations and publiciz[ing] what they uncover” on the ground that it violates their First Amendment free speech rights. The North Carolina Property Protection Act (the “Act”) prohibits “intentionally gain[ing] access to the nonpublic areas of another’s premises and engag[ing] in an act that exceeds the person’s authority to enter.” N.C. Gen. Stat. §99A-2(a). The court suggests that North Carolina can achieve any legitimate goals it has in protecting private property by focusing on the interests that trespass law protects in the exclusive possession of land. Unauthorized access can be prohibited but that cannot be conditioned on regulating speech that is protected by the First Amendment. PETA challenged four provisions …

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Federal court rejects claim for religious or speech exemption from state public accommodations law for wedding photographer

/ Antidiscrimination Law, Consumer Protection, Free Speech, Religious Freedom, Sexual Orientation

A federal judge for the Western District of New York has ruled that the state public accommodations statute can be applied to a wedding photographer who refused to provide services for same-sex couples. Carpenter v. James, 2021 WL 5879090 (W.D.N.Y. 2021). On the speech claim, the court assumed that the law compelled speech on the part of the photographer but held that the law only affected speech incidentally in connection with regulation of economic activity and that the law was narrowly tailored to achieve its purposes. The court also held that the provision of photography services did not require the photographer to participate in a religious ceremony. Note that an Eighth Circuit decision disagrees. Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019).

Kansas “ag gag” law unconstitutional infringement on free speech

/ Free Speech, Trespass

A Kansas statute (Kansas Farm Animal and Field Crop and Research Facilities Protection Act, Kan. Stat. §47-1825 to §47-1828) criminalized entry into an agricultural facility “without the effective consent of the owner” if the intent is to “damage the enterprise.” Animal Leg. Defense Fund v. Kelly, 2021 WL 3671122 (10th Cir. 2021). The Tenth Circuit struck down three provisions of the act under the first amendment because they were not content or viewpoint neutral and thus subject to strict scrutiny. The three provisions were in §47-1827 and they prohibited exercising control over an animal facility, recording on the property, or trespassing without the effective consent of the owner with the intent to damage the enterprise. The court cited Judge Posner’s opinion in Desnick v. Am. Broadcasting Co., Inc., 44 F.3d 1345 (7th Cir. 1995) approvingly for the proposition that entry to property does not infringe on the right to exclusive possession just …

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Town esthetic zoning law does not violate the owner’s free speech rights

/ Free Speech, Zoning

The Eleventh Circuit ruled that a town could prevent an owner from building a home that had an architectural design out of keeping with surrounding homes. Burns v. Town of Palm Beach, 2021 WL 2325300 (11th Cir. 2021). The owner hoped to demolish his home and build one more than twice as large in a midcentury modern style rather than the typical Palm Beach beachfront house style. The town zoning laws had created an architectural review commission empowered to regulate the architectural style of homes to achieve a coherent and beautiful neighborhood environment free from large deviations. Because Palm Beach is a tourist destination, the town has an interest in preserving what makes the town attractive to visitors. When the commission rejected the proposed plans, the owner sued claiming that the design expressed his commitment to a simpler lifestyle with fewer possessions and that the town’s prohibition on his design infringed …

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Eighth Circuit holds that videographers have First Amendment free speech right to refuse to provide services at same-sex weddings

/ Antidiscrimination Law, Consumer Protection, Free Speech, Religious Freedom, Sexual Orientation

In Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019), the Eighth Circuit held that Minnesota could not enforce its public accommodations law against a company that refused to provide video services for same-sex weddings. The process of producing a video, the court said, constitutes “speech” and would be posted on the company’s website. The company sought to produce wedding videos of opposite-sex couples to “affect public attitudes and behavior” by “depict[ing] marriage as a divinely ordained covenant” that exists “between a man and a woman.” To forced them to produce videos for same-sex couples constitutes compelled speech that violates the Constitution’s protection for freedom of speech. The court emphasized the creative work that would go into editing; the company was not simply videotaping the wedding but retained “ultimate editorial judgment and control.” The court accepted the company’s assertion that if it provided its services for same-sex couples, this would “compel …

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Federal court allows public accommodation to refuse to create custom videos of same-sex weddings

/ Antidiscrimination Law, Consumer Protection, Free Speech, Gender Identity, Religious Freedom, Sexual Orientation

In a 2 to 1 vote, the Eight Circuit has held that the First Amendment prohibits a state from enforcing its public accommodations law if it requires videographers to create custom videotapes of same-sex weddings even though they provide this service to opposite-sex weddings. Telescope Media Group v. Lucero, 2019 U.S. App. LEXIS 25320 (8th Cir. 2019). Because the videos will be edited and posted on the videographer’s website, the majority accepted the defendant’s argument that they would convey a message of support for same-sex marriage contrary to the views of the regulated entity. Judges David Stras and Bobby Shepherd found this to be “compelled speech” that violates the business’s constitutionally-protected right to freedom of speech. Dissenting judge Jane Kelly found no compelled speech, just a statutory duty to provide the same services to both same-sex and opposite sex couples.

Trademark Act provision disallowing registration of marks that are immoral or scandalous violates the first amendment

/ Free Speech, Trademarks

The Supreme Court has held, inIancu v. Brunetti, — U.S. — (2019), that the Constitution prohibits statutory distinctions between commercial speech based on its “viewpoint.” The provision of the Trademark Act taht prohibits federal registration of marks that are “immoral or scandalous,” 15 U.S.C. §1052(a) is thus unconstitutional. While several Justices would have interpreted the provision narrowly to outlaw speech based on its manner rather than its substance (for example, outlawing obscene, profane, or vulgar) and then upheld the constitutionality of the provision. The majority left it to Congress to try to adopt a narrower provision that would not distinguish between speech based on whether it is consistent with conventoinal morality. The end result is to allow Erik Brunetti to obtain trademark registration for his F-U-C-T line of clothing.

Religious exemption to public accommodation laws rejected by Supreme Court while those laws cannot be administered in a way that demonstrates hostility to religion or that unfairly discriminates among religious beliefs

/ Antidiscrimination Law, Consumer Protection, Free Speech, Legal Theory, Religious Freedom, Sexual Orientation

This blog entry has a long title because the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd., v. Colo. Civil Rights Comm’n, 2018 U.S. LEXIS 3386, 2018 WL 2465172 (U.S. 2018) is complicated and cannot be summarized quickly. While the baker won the case (the Supreme Court reversed the state court order to him to pay civil rights damages to the plaintiff couple for refusing to sell them a “wedding cake”), he won it on such narrow grounds that the decision is likely to wind up supporting the power to states to enforce civil rights law without regard to the religious objections of business owners. The Supreme Court ruled in favor of the baker on narrow grounds in a 7-2 decision with four judges concurring. The two dissenting judges were Ginsburg and Sotomayor. Three concurring opinions were written by Kagan (joined by Breyer) and Gorsuch (joined by Alito) and Thomas (joined by Gorsuch). …

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First Amendment protects right to federal registration of offensive trademarks that disparage a person or group

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act, Free Speech, Intellectual Property, Religious Freedom, Sexual Orientation, Trademarks

The Supreme Court held that the First Amendment prohibits enforcement of a provision of the Lanham Act that purports to deny the benefits of trademark registration to names or marks that “disparage” a person or “bring [them] into contempt or disrepute.” Matal v. Tam,2017 WL 2621315 (U.S. 2017); 15 U.S.C. §1502(a) (Lanham Act). The Court held that “this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” The case involved a band called “The Slants” who sought to reclaim an offensive term for persons of Asian descent. Because the Court’s analysis focused on the idea that speech cannot be regulated because of its offensive content, it would appear that this ruling would equally apply to those who use a term about themselves (the members of the Slants are Asian-Americans) …

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