(apropos this post from several days ago):
1. The same Seattle ordinance, I realized, prohibits discrimination based on “political ideology,” defined as “any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group.” So the hypotheticals I gave in this paragraph
Whether or not we agree with her, I think we must acknowledge that [the coercion of the printer] is a significant loss of freedom for her — just as it would be a loss of freedom to force an ethical vegetarian building contractor to help build a meatpacking plant, to force a militant Democrat printer to print Republican flyers, or to force a pacifist mechanic to help repair tanks that are on their way to the battlefield.
could actually take place. A virulently anti-gay group could go to a gay, pro-gay-rights printer and demand that he print their flyers — and he’d have no right to refuse.
2. Several readers asked whether this might violate the printer’s First Amendment rights not to be compelled to speak. That turns out to be a tough question. Under the First Amendment, publishers generally can’t be required to include into their existing publications things that they don’t want to include; for instance, some recent attempts to force newspapers to run coverage of same-sex weddings alongside coverage of other weddings would almost certainly violate the First Amendment. But it’s not clear whether printers have a similar right not to be forced to print standalone materials, which won’t interfere with the printer’s other speech, and which probably won’t be associated by readers with the printer.
The strongest argument on the printer’s behalf, I think, would be based on the Abood v. Bd. of Ed. line of cases, which held that people may not be forced to contribute money to unions, state bars, and other such groups, when that money will be used for ideological advocacy. There are some exceptions, see, e.g., Southworth v. Bd. of Regents (student fees at public universities), and of course the government may force people to give money to the government itself (via taxes) even when that money will be used for ideological advocacy. But this is still the basic rule.
It seems to me that forcing people to actually do work on producing speech they disapprove of (not just when they’re government employees, but when they’re private citizens that the government is regulating) is at least as much of a First Amendment problem as forcing them to contribute money that helps produce speech they disapprove of. One possible distinction is that here the speech isn’t overtly political; but an invitation to a same-sex marriage is these days (for better or worse) a political statement, often intended as such and often perceived as such.
The best arguments against the First Amendment claim, I think, would point to the PruneYard and Turner Broadcasting cases. PruneYard upheld a requirement that owners of large shopping centers allow speakers to use their property; Turner upheld a requirement that cable operators carry certain cable channels. But Turner, I think, was a special case because of the cable operator’s monopoly power. And the law in PruneYard was less burdensome on the property owner — there the shopping center owner simply had to let speech onto his property; here the business owner would have to directly, and quite possibly personally, work in the actual production of speech that he disapproves of. Nonetheless, the compelled speech doctrine is messy enough that it’s impossible to tell for sure how a court would (or even how it should, given the precedents) come out on this.
3. Finally, the Washington Constitution has been interpreted as providing religious objectors with a right to get exemptions from laws that burden their religious practices, unless the law is “narrowly tailored to a compelling interest.” Thus, if the printer had a sincere religious objection to printing the invitations (and not just a philosophical objection unrelated to her religious beliefs, if any), then she might be entitled to a religious exemption, unless the court concludes that the law is indeed “narrowly tailored to a compelling interest.” The track record of such exemption claims (mostly raised by landlords who claim a religious obligation not to rent to unmarried couples, and who thus want to be exempted from state laws that ban marital status discrimination in housing) has been mixed. Naturally, litigating to get such exemptions (even if you do have a sincere religious objection to the behavior that you’re being required to engage in, which isn’t clear as to this particular woman) is not easy and not cheap.
Comments are closed.