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 <firstname.lastname@example.org> 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 <email@example.com<mailto:firstname.lastname@example.org>>; 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.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.