Eugene invokes *Wooley *to make the following comparison:
"If Maynard can't be required to carry the motto 'Live Free or Die' on his
car, then a Maynard who is a generally will-take-most-commissions freelance
writer can’t be required to write a press release or organizational
newsletter that expresses the view 'Scientology is good.'"
Should it not matter that *Wooley* -- like *Barnette*, but unlike Eugene's
freelance-writer hypo -- involved a content-specific regulation by the
government directed at speech (declare "Live Free or Die" or pledge
"Allegiance" to the flag), not a broad conduct regulation of commercial
services offered to the public (don't discriminate based on a customer's
race, religion, sex, marital status, or sexual-orientation) that ends up
having an incidental effect on speech in a particular case? Eugene has been
supportive of the *Smith *Court's distinction between regulations directed
at religion and incidental burdens in the free exercise context; why
shouldn't a similar distinction be made in the free speech context?
Also, here's an alternative comparison that would seem to flow just as
logically from Eugene's position:
If Maynard can't be required to carry the motto 'Live Free or Die' on his
car, a Maynard who runs a bakery and generally personalizes cakes for most
occasions can't be required to personalize a cake that expresses the view
that an [interracial, inter-faith, second, same-sex] marriage anniversary
is a happy occasion.
I'm skeptical that a bakery owner's free speech interests are just as
threatened by the requirement to provide an interracial couple with a
"Happy Anniversary, Richard and Mildred" cake as Maynard's rights were
threatened by having to display the state's "Live Free or Die" message on
his car. My skepticism is driven by (1) the distinction between government
regulation directed at speech and government regulation that incidentally
burdens speech, (2) the distinction between the commercial and
non-commercial realms that Justice O'Connor wrote about in *Jaycees*, and
(3) the distinction between the internal activities of a church or
membership organization and external activities with the public at large.
Of course, one might invoke *Dale *to respond to any proffered distinction
between speech-specific burdens and incidental burdens, and some have also
viewed *Dale *as rejecting O'Connor's commercial/non-commercial
distinction. But it seems to me that *Dale *is actually premised on the
latter distinction, and that both *Dale* and *Hosanna-Tabor *support the
proposition that incidental burdens are of greater concern when they
regulate the internal operations of churches and membership associations
than when they regulate the activities of commercial entities or other
external conduct in society. *See Dale *530 U.S. at 657 ("As the definition
of 'public accommodation' has expanded from clearly commercial entities,
such as restaurants, bars, and hotels, to membership organizations such as
the Boy Scouts, the potential for conflict between state public
accommodations laws and the First Amendment rights of organizations has
increased."); *Hosanna-Tabor* 132 S.Ct. at 707 ("*Smith* involved
government regulation of only outward physical acts. The present case, in
contrast, concerns government interference with an internal church decision
that affects the faith and mission of the church itself.").* See generally P
**rince v. Massachusetts*, 321 U.S. 158, 177-78 (1944) (Jackson, J.,
concurring in the result) ("Religious activities which concern only members
of the faith are and ought to be free—as nearly absolutely free as anything
can be. But beyond these, many religious denominations or sects engage in
collateral and secular activities intended to obtain means from unbelievers
to sustain the worshippers and their leaders…. All such money-raising
activities on a public scale are, I think, Caesar’s affairs and may be
regulated by the State …."); *United States v. Lee*, 455 U.S. 252, 261
(1982) ("When followers of a particular sect enter into commercial activity
as a matter of choice, the limits they accept on their own conduct as a
matter of conscience and faith are not to be superimposed on the statutory
schemes which are binding on others in that activity.").
On Sat, Aug 24, 2013 at 9:37 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote:
> Well, New Mexico law covers “any establishment that
> provides or offers its services ... to the public, but does not include
> a[n] ... establishment that is by its nature and use distinctly private.”
> That does mean that a freelance writer who only writes on behalf of a
> limited set of clients, rather than offering his services to the public at
> large, wouldn’t be covered by this particular statute. But a freelance
> writer who does promote his services to the public would qualify, even if
> he exercises some selectivity. (Indeed, Huguenin says that there are other
> photography commissions she won’t take, such as for pornography, horror
> films, and the like, though chances are that she won’t even be approached
> for them in the first place. Conversely, my sense is that many freelance
> writers who offer to hire themselves out to the public will take the great
> majority of jobs that come their way, even though they too would draw the
> line somewhere.) So I can’t see how such freelance writers would be immune.
>
>
>
> But in any event, even if a freelance writer or
> photographer is unselective, I can’t see how that person’s expression isn’t
> “her own.” To be sure, the public might not see an unselective
> photographer’s/writer’s speech as equally expressing her own ideology. But
> the writer or photographer would still be creating the expression herself,
> using her own artistic and literary creative judgment.
>
>
>
> The question, then, is: Should people have a right not to
> be compelled to create expression they think is wrong, just as they have a
> right not to be compelled to distribute expression they think is wrong? It
> seems to me that the logic of *Wooley *should extend equally to both
> rights. If Maynard can’t be required to carry the motto “Live Free or Die”
> on his car, then a Maynard who is a generally will-take-most-commissions
> freelance writer can’t be required to write a press release or
> organizational newsletter that expresses the view “Scientology is good.”
> Indeed, the requirement to actually create expression seems much more
> burdensome than simply the requirement to carry a slogan on one’s car.
>
>
>
> Finally, note that the New Mexico Supreme Court expressly
> disclaimed any argument that mere wedding photography is just too banal to
> be expressive for purposes of this analysis (not that Eduardo so argued
> below, but I’ve seen that argument elsewhere). “This determination [that
> Elane Photography is subject to the public accommodations law] has no
> relation to the artistic merit of photographs produced by Elane
> Photography. If Annie Leibovitz or Peter Lindbergh worked as public
> accommodations in New Mexico, they would be subject to the provisions of
> the NMHRA.”
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Penalver, Eduardo
> *Sent:* Friday, August 23, 2013 12:23 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: New Mexico decision and other First Amendment expression
>
>
>
> It seems to me, the more selective they are, (1) the less likely they are
> covered by the statute (the predicate for the 1A claim) and (2) the more
> the speech is their own (which does seem relevant to a compelled speech
> claim).
>
>
>
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