Two Minnesota videographers sought to enjoin enforcement of the state’s anti-discrimination law, which would require them to serve all couples equally without regard to sexual orientation. The Eighth Circuit has vacated denial of injunctive relief, concluding that the anti-discrimination law is a content based regulation of expressive speech. The court held that First Amendment precludes the state from compelling or inhibiting speech: even anti-discrimination laws must comport with the Constitution.

It does not matter if the speech in issue annoys, nor does the form of enterprise disturb the result that the making of videos is constitutionally protected expressive speech, the court noted. It does not matter that the human rights act does not mention speech on its face. The statute demands that if plaintiffs decide to speak on one topic, they must then speak on a topic they otherwise would not, and in a manner contrary to their views. The plaintiffs’ alternative is to withdraw from the marketplace of ideas, itself a restriction on speech.

The federal appellate court agreed that the state interest in asserting equal access to public accommodations and services is compelling. Nonetheless, the First Amendment protections afforded speech impact the analysis. Discriminatory acts may be prohibited but speech itself is not a public accommodation, nor can anti-discrimination laws provide access to participate in others’ speech.

The Eighth Circuit worried that the speech policies compelled by the anti-discrimination statutes would have no stopping point. The court rejected the notion that the statute regulated conduct and only incidentally burdened speech, which would would have permitted the statute to survive strict scrutiny.

A disclaimer would be insufficient to cure the harm of compelled speech, as it would require affirming yet denying the state’s policy simultaneously. And other permissible prohibitions are easily distinguished: denial of service on the basis of protected status is an act, not speech, and is subject to state intervention.

The court extended its analysis to recognize the hybrid nature of the plaintiff’s Free Exercise claim. More than a neutral law of general applicability is involved where communicative activity is inextricably a part of a Free Exercise claim. The court observed that ultimately the hybrid rights theory would make no difference, because the speech claim is already subject to strict scrutiny, but the hybrid rights claim has been articulated and may go forward.

The dissent observed that in no instance does the law extend “affirmative constitutional

The dissent rejected the compelled speech analysis and insisted that speech messages — or silence — remain available as ever, but plaintiffs may not serve only some sexual orientations and not others. Any expressive aspect of the service is not sufficient to change this general law into a content based regulation, nor can this “expression” be allowed to permit discrimination.

Plaintiffs have conceded that their videography business is a public accommodation subject to the statute, and plaintiffs for profit enterprise is not subject to religious exemption. Plaintiffs cannot define their business to include discrimination, particularly where the focus of the public accommodation laws is on the customer, not the merchant. It is immaterial that a particular behavior — marriage — is involved, as characteristics as well as classes are protected interests. Offering some, but not all, services to same sex couples remains discriminatory. It does not matter that plaintiff’s concern is only with same sex marriage and not with same sex preferences in general.

The dissent rejected the content regulation analysis and pointed out that precedent concerns the application of strict scrutiny to a particular activity that would result in a speech burden In such cases, the speaker’s conduct is of concern, but that cannot be the case here, where the customer’s expression in the wedding videos is the primary message, even if the plaintiffs exercise editorial control over their videos.

The dissent dismissed the Free Exercise claim by pointing out that the plaintiffs’ beliefs are undisturbed: only their freedom to act is subject to regulation, and only incidentally so, and they are not free to import their beliefs into the statutes that bind others.

The dissent noted that precedent is clear that anti-discrimination statutes do not impermissibly burden religion and that the “hybrid” claim theory advanced by the court services from dicta recognizing a possible claim: it enjoys no legal force. Even if it did, as there is no Free Speech claim, there is no hybrid rights claim.

Telescope Media Grp. v. Lucero (8th Cir., 2019)