By DEACON MIKE MANNO, JD
The operators of a small Minnesota media firm wanting to make pro-traditional marriage videos were given a legal victory against state authorities who claimed their business plans violated the state law.
Carl and Angel Larsen, who operate a business called Telescope Media Group (TMG), which produces short films, commercials, and other videos, wanted to expand their business to include celebratory wedding videos that would promote their Christian beliefs in traditional one-man, one-woman marriage.
The problem was that the state, relying on the Minnesota Human Rights Act (MHRA), cried, “Foul.”
It seems that under the terms of the MHRA, Telescope Media Group falls into the category of a “public accommodation” and, as a result, the state argued, it cannot turn away same-sex couples who wish to celebrate their nuptials.
Thus, the Larsens had to either celebrate same-sex weddings or refrain from doing any wedding videos at all. The law was firm and offered no religious exceptions and violations could be costly: civil penalty, triple damages to a denied couple, punitive damages up to $25,000, as well as a criminal penalty which could be as high as $1,000.
And, in addition to the pecuniary loss, the Larsens would risk 90 days in jail.
So naturally they did the all-American thing: They sued.
Taking their case was the Alliance Defending Freedom (ADF) which filed for a pre-enforcement injunction against the state from enforcing the MHRA against TMG and the Larsens. It alleged that enforcement would abridge the Larsens’ rights of free speech, religious freedom, equal protection, and free association — among other issues.
The federal district court in Minnesota not only refused injunctive relief, but it threw the case out of court. It held that since the MHRA serves an important governmental interest, it did not violate the Larsens’ free speech claim, nor did the law violate any of the other constitutional rights they claimed were violated.
Thus they were told to quit the Christian wedding video business or comply with the law.
They appealed and the Eighth Circuit Court of Appeals upheld their free speech claim. It also directed the district court to reconsider the religious freedom claim in light of its decision, but did uphold the dismissals of the other claims.
The appellate court, with one dissent, took the videographers’ free speech claim seriously and delivered a clear, ringing endorsement for them. It disabused the state’s notion that the public accommodations law did not infringe on free speech, but was directed at conduct, and, in fact, held that speech was not a public accommodation.
“To be sure, producing a video requires several actions that, individually, might be mere conduct….But what matters for our analysis is that these activities come together to produce finished videos that are media for the communication of ideas,” the court wrote.
“If we were to accept Minnesota’s invitation to evaluate each of the Larsens’ acts individually, then wide swaths of protected speech would be subject to regulation by the government.”
The court found two major problems with the Minnesota law:
“First, it compels the Larsens to speak favorably about same-sex marriage if they choose to speak favorably about opposite-sex marriage. Second, it operates as a content-based regulation of their speech….The Supreme Court has held time and again that freedom of speech includes both the right to speak freely and the right to refrain from speaking at all…the choice of a speaker not to propound a particular point of view is presumed to lie beyond the government’s power to control….The Supreme Court has recognized that the government still compels speech when it passes a law that has the effect of foisting a third party’s message on a speaker.”
The court went on to say, “Even antidiscrimination laws, as critically important as they are, must yield to the Constitution. And as compelling as the interest in preventing discriminatory conduct may be, speech is treated differently under the First Amendment.”
And while the government may prohibit the act of discrimination, “it may not declare another’s speech itself to be a public accommodation or grant protected individuals the right to participate in another’s speech” (emphasis mine).
A lengthy dissent, which was characterized as creating a “moving target,” and a “scattershot approach” by the majority, claimed that the law only created “incidental burdens on speech.”
“The Larsens remain free to communicate any message they desire — about same sex-marriage or any other topic — or no topic at all. What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake, that is what today’s decision affords them license to do….
“That the service the Larsens want to make available to the public is expressive does not transform Minnesota’s law into a content-based regulation, nor should it empower the Larsens to discriminate against prospective consumers based on sexual orientation.”
The attorney for the Larsens, ADF Senior Counsel Jeremy Tedesco, said of the ruling, “This is a significant win. The government shouldn’t threaten filmmakers with fines and jail time to force them to create films that violate their beliefs.”
The two judges in the majority that held the Larsens’ videos as a form of free speech were Judge Bobby E. Shepherd, a 2016 Bush appointee, and the author of the opinion, Judge David Stras, a 2018 Trump appointee. The dissent was filed by Judge Jane L. Kelly, a 2013 Obama pick.
Just sayin’.
Also interesting are the numbers of state attorneys general who filed amici (friend of the court) briefs supporting Minnesota and against the Larsens’ free speech rights: The District of Columbia, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.
This ruling at least has the effect of reaffirming those free speech rights that we, for as long as I can remember, naturally assumed were inviolate. What is unsettling is how much support those who wish to challenge that assumption have — and why. We don’t know if the state will appeal the ruling, but at least for now we have a win and the right guy picking our judges.
(You can reach Mike at: DeaconMike@q.com.)
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