On that, I don’t quite agree. The line I would draw for when
such mandates become speech compulsions is the same as for content-neutral
speech restrictions. If the government can ban an activity or grant a monopoly
in it, it can generally compel it (again, at least when it does so without
regard to content) without a First Amendment problem. Can the government set
up a monopoly (or a quasi-monopoly “medallion” system) for butchers, bakers,
florists, or limo drivers? Yes, because that is not generally expressive
conduct. Likewise, compelling people to sell flowers (even in pretty
arrangements) or cakes (at least without writing) isn’t speech compulsion.
But can the government limit the number of speakers, singers,
writers, painters, or photographers in town, even if they speak for a living?
No, I think, because those activities are expressive. And compelling people to
engage in such expression is also a speech compulsion.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Mark Scarberry
Sent: Wednesday, October 12, 2016 3:18 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers
Outside of this context (in the context of licensing) and before these kinds of
issues arose, I argued that flower arranging, even by a grocery store employee,
is speech for 1st Amendment purposes, because the florist is trying to create
something beautiful and perhaps something that will convey a message of love or
concern to whoever might get the flowers. I still hold that position.
Mark
Mark S. Scarberry
Professor of Law
Pepperdine University School of Law
On Wed, Oct 12, 2016 at 11:58 AM -0700, "Volokh, Eugene"
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
A question about Chip’s “no solicitude” position to the
compelled speech claim for Fred the photographer or DJ: Chip, would you say
the same as to a singer? A portrait painter? A calligrapher?
Antidiscrimination laws ban religious discrimination as well as
sexual orientation discrimination. Say a motivational speaker who generally
speaks to pretty much any group is asked to speak to a Church of Scientology
gathering, or a press release writer who is generally open for business is
asked to write a press release for the Scientologists. Would he have a
legitimate claim not to be compelled to speak to such an audience, or to write
such a press release?
Such laws in some places also ban discrimination based on
political affiliation. (D.C. is one example.) Say someone doesn’t want to
write a press release for a candidate who belongs to a party he disapproves of.
Would that be enough for a compelled speech claim? Is the line between
creators of different kinds of speech (photographs vs. portraits vs. press
releases vs. speeches)? Or is it that people who write/speak/etc. for a
living, and who take various contracts, can’t raise compelled speech objections
in any contexts?
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, October 12, 2016 11:29 AM
To: Mitchell Berman <mitch...@law.upenn.edu<mailto:mitch...@law.upenn.edu>>
Cc: David Bernstein <dbern...@gmu.edu<mailto:dbern...@gmu.edu>>; Law & Religion
issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>;
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers
Mitch Berman's good question asks in general terms about how much "solicitude"
Fred's claim deserves. But we cannot answer intelligently unless we know the
forum and the grounds advanced for Fred. Is he asking the state legislature to
exempt religious objectors from public accommodations law? Is he raising a
compelled speech claim? A religious freedom claim under a RFRA, or a state
constitution? I would give his claim no solicitude in any of these contexts,
for reasons I have spelled out at length on this listserv and in law reviews.
But I can imagine that others might well react differently depending on the
legal context.
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