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 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> 

               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?




From: 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>

Cc: David Bernstein <dbern...@gmu.edu>; Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu>; 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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