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.


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 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?


[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 
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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