I think Dale’s criticisms of the Arlington County Human Rights Commission actions is quite sound. (It’s not clear from the news story whether the Commission actually ordered the business to duplicate the movies or pay for their duplication, or merely investigated it and “suggested” such a remedy; but I’ll assume that their actions were attempts to use the law to coerce the businessman to duplicate the movies.)
To get to the question that Dale specifically reserves, though, it turns out that, given the Supreme Court’s recent decision in Rumsfeld v. FAIR, such a coercive order would not have violated the business’s First Amendment rights. It wouldn’t have involved an unconstitutional speech compulsion, given the Court’s reasoning, because the business’s “own message [would not be] affected by the speech it was forced to [duplicate].” And it wouldn’t have involved unconstitutional interference with the business owner’s expressive association rights, because it “does not force a [business] ‘to accept members it does not desire.'” Even if the business says that copying the video “impairs [its] own expression by requiring [it] to associate with the [message of the video],” “just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, so too a speaker cannot ‘erect a shield’ against laws requiring [service] ‘simply by asserting’ that mere association ‘would impair its message.'”
Note that though the FAIR case involved a requirement attached as a condition to a government subsidy, the Court’s decision in Rumsfeld v. FAIR held that such a requirement “could be constitutionally imposed directly,” even by the government acting as sovereign rather than by the government acting as subsidizer. The precedent thus applies to all similar restrictions, not just as ones that are attached to a subsidy.
The one possible difference between this case and FAIR is that the FAIR decision did stress that it involved a Congressional act aimed at raising armies, which requires some “judicial deference.” But the rest of the decision didn’t rely on this, and instead applied — and set a precedent about — standard First Amendment law that’s applicable even outside the context of military recruiting.
So, again, I agree with Dale’s criticisms; but it’s important to recognize that they are state-law-based and policy-based criticisms, and don’t lead to the conclusion that the Commission’s actions (even if coercive) violated the First Amendment.