I’m pleased to report that I filed a friend-of-the-court brief, on behalf of the Cato Institute, Dale Carpenter, and myself, arguing that wedding photographers (and other speakers) have a First Amendment right to choose what expression they create, including by choosing not to photograph same-sex commitment ceremonies. All the signers of the brief support same-sex marriage rights; our objection is not to same-sex marriages, but to compelling photographers and other speakers works that they don’t want to create.
You can see a PDF copy of the brief at the Cato site, and also Cato’s blog post on the subject. I’ve also included the text of the brief below:
[Table of Contents:]
I. Introduction: This Case Is Largely Controlled by Wooley v. Maynard, 430 U.S. 705 (1977)
II. Under the First Amendment, Speech Compulsions Are Generally Treated the Same as Speech Restrictions
III. Wooley Extends to Photography, Including Photography Created for Money
IV. Wooley Extends to Compelled Creation of Speech as Well as Compelled Distribution of Speech
V. The Court of Appeals’ Analysis Is Inconsistent with Wooley
VI. First Amendment Protection Against Compelled Speech Extends Only to Refusals to Create First-Amendment-Protected Expression
I. Introduction: This Case Is Largely Controlled by Wooley v. Maynard, 430 U.S. 705 (1977)
This case is largely controlled by a United States Supreme Court precedent that the court of appeals never mentioned: Wooley v. Maynard, 430 U.S. 705 (1977). Wooley, the New Hampshire license plate case that we discuss in detail below, makes clear that speech compulsions are generally as unconstitutional as speech restrictions. Wooley’s logic applies to photographs and other displays, and not just verbal expression. And that logic applies also to compulsions to create photographs and other works (including when the creation is done for money), not [...]