{"id":218,"date":"2019-10-22T21:48:00","date_gmt":"2019-10-22T21:48:00","guid":{"rendered":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/?p=218"},"modified":"2023-12-15T21:57:18","modified_gmt":"2023-12-15T21:57:18","slug":"eighth-circuit-holds-that-videographers-have-first-amendment-free-speech-right-to-refuse-to-provide-services-at-same-sex-weddings","status":"publish","type":"post","link":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/2019\/10\/22\/eighth-circuit-holds-that-videographers-have-first-amendment-free-speech-right-to-refuse-to-provide-services-at-same-sex-weddings\/","title":{"rendered":"Eighth Circuit holds that videographers have First Amendment free speech right to refuse to provide services at same-sex weddings"},"content":{"rendered":"\n

In Telescope Media Group v. Lucero,<\/a> 936 F.3d 740 (8th<\/sup> 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 \u201cspeech\u201d and would be posted on the company\u2019s website. The company sought to produce wedding videos of opposite-sex couples to \u201caffect public attitudes and behavior\u201d by \u201cdepict[ing] marriage as a divinely ordained covenant\u201d that exists \u201cbetween a man and a woman.\u201d To forced them to produce videos for same-sex couples constitutes compelled speech that violates the Constitution\u2019s 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 \u201cultimate editorial judgment and control.\u201d<\/p>\n\n\n\n

The court accepted the company\u2019s assertion that if it provided its services for same-sex couples, this would \u201ccompel [it] to speak favorably about same-sex marriage\u201d and constitute a \u201ccontent-based regulation\u201d of speech.<\/p>\n\n\n\n

The court argued that \u201cregulating speech because it is discriminatory\u2026is not a compelling state interest.\u201d It recognized that:<\/p>\n\n\n\n

\u201ca 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<\/em> of hiring employees and providing food, neither of which typically constitutes speech. Here, by contrast, Minnesota is targeting speech itself.\u201d<\/p>\n\n\n\n

It is unclear how this principle would apply if a restaurant or other public accommodation spoke disparagingly to customers because of their race or religion or if an employer engaged in sexual harassment of an employee. Antidiscrimination laws cannot function if they cannot regulate speech. Perhaps the court thought that a requirement to refrain from saying what you want to say is different from being compelled to utter words. It also is hard to see why the company would not be free to make the same claim to justify refusing to serve interracial couples or Jewish couples.<\/p>\n\n\n\n

A dissenting judge noted that \u201cno court has ever afforded \u201caffirmative constitutional protections\u201d to private discrimination.\u201d She also denied that the statute \u201cforce[d anyone] to speak and to convey a message with which they disagree.\u201d She continued:<\/p>\n\n\n\n

\u201cThe Larsens remain free to communicate any message they desire\u2014about same-sex marriage or any other topic\u2014or 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\u2019s decision affords them license to do.\u201d<\/p>\n\n\n\n

The case was cited in Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019), which came to a similar conclusion with regard to a company that refused to design wedding invitations for a same-sex couple.<\/p>\n\n\n

Antidiscrimination Law<\/a>, <\/span>Consumer Protection<\/a>, <\/span>Free Speech<\/a>, <\/span>Religious Freedom<\/a>, <\/span>Sexual Orientation<\/a><\/div>","protected":false},"excerpt":{"rendered":"

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 \u201cspeech\u201d and would be posted on the company\u2019s website. The company sought to produce wedding videos of opposite-sex couples to \u201caffect public attitudes and behavior\u201d by \u201cdepict[ing] marriage as a divinely ordained covenant\u201d that exists \u201cbetween a man and a woman.\u201d To forced them to produce videos for same-sex couples constitutes compelled speech that violates the Constitution\u2019s 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 \u201cultimate editorial judgment and control.\u201d The court accepted the company\u2019s assertion that if it provided its services for same-sex couples, this would \u201ccompel …<\/p>\n

Eighth Circuit holds that videographers have First Amendment free speech right to refuse to provide services at same-sex weddings<\/span> Read More »<\/a><\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","footnotes":""},"categories":[39,9,32,54,55],"tags":[],"class_list":["post-218","post","type-post","status-publish","format-standard","hentry","category-antidiscrimination-law","category-consumer-protection","category-free-speech","category-religious-freedom","category-sexual-orientation"],"featured_image_src":null,"featured_image_src_square":null,"author_info":{"display_name":"jsinger","author_link":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/author\/jsinger\/"},"_links":{"self":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/posts\/218","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/users\/17"}],"replies":[{"embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/comments?post=218"}],"version-history":[{"count":0,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/posts\/218\/revisions"}],"wp:attachment":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/media?parent=218"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/categories?post=218"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/tags?post=218"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}