May the Government Force You to Print Ideological Materials You Don’t Want to Print?

That’s the question brewing in Lexington, Kentucky. The Gay and Lesbian Services Organization has filed the following complaint with the Lexington Human Rights Commission (paragraph breaks added):

The Pride Festival committee of the Gay and Lesbian Services Organization (GLSO) received a quote from Hands On Originals in December by phone (from an employee named Kaleb) to produce t-shirts for the 5th annual Pride Festival in Lexington. The quote from Hands On Originals was the lowest bid from a local company, and the committee intended to move forward with having them produce shirts. However, a committee member first called the business with the intention of finding out whether any lower price could be negotiated. He reached someone there who asked who he had previously talked to. At that moment, he could not remember their name, and when the name “Blaine” was suggested, he agreed. Numerous phone messages back and forth were exchanged before the committee member was finally able to speak with Blaine, who represented himself as an owner of Hands On Originals.

His inquiries were related to what the GLSO was, what our mission was, and what we were promoting. The committee member explained, including that the t-shirt would only contain a stylized number “5″ on the front and the name of the festival, and sponsors on the rear.

When Blaine learned that it was a gay pride festival, he asked, “You know we’re a Christian organization, don’t you?” He then continued on to say that Hands On Originals would not print shirts related to a gay pride festival. He suggested that he could refer us to a different business who would print the shirts. Our committee member told them he would take that offer to the board, but that he felt that we would not want to do business with anyone who did business with Hands On Originals, based on their discrimination.

On March 25th, the GLSO board met in emergency session and agreed to file a complaint with the HRC under the Lexington Fairness Ordinance.

Here, by the way, is Blaine Adamson’s side of the story, which seems factually consistent with the GLSO’s allegations.

1. It seems to me that Hands On Originals didn’t violate the ordinance. The ordinance does, among other things, ban public accommodations discrimination based on sexual orientation (cf. Ky. Rev. Stat. § 344.120 and Ky. Rev. Stat. § 344.130, which it incorporates by reference), and Kentucky public accommodations discrimination law would cover T-shirt shops (since it covers “any place, store, or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public”). But it defines “sexual orientation” to “mean an individual’s actual or imputed heterosexuality, homosexuality, or bisexuality.”

Hands On Originals was apparently discriminating based on the message on the T-shirt (“He then continued on to say that Hands On Originals would not print shirts related to a gay pride festival”), not based on the sexual orientation of the individual who called in the order, or of other individuals in GLSO. That doesn’t seem to be discrimination based on “an individual’s actual or imputed heterosexuality, homosexuality, or bisexuality,” and is thus not barred by the Ordinance.

2. But even if the Ordinance does prohibit what Hands On Originals did (for instance, if it’s interpreted the way Massachusetts courts interpreted the public accommodations ordinance in Hurley v. Irish-American Gay, Lesbian & Bisexual Group (1995)), then the Ordinance unconstitutionally compels speech, because it requires printers to print material that they do not want to print. Abood v. Detroit Bd. of Ed. (1977) and Keller v. State Bar (1990) reaffirmed that the government generally may not compel someone to give over money to a private or even quasi-public entity when that money will be used for political or ideological speech. (There is an exception for when the government is acting as employer or regulator of the bar, and the compulsory payments are germane to the collective bargaining functions of a union or a bar association, but that does not apply here.) If so, then requiring someone to actually physically print political or ideological speech is an even clearer First Amendment violation.

Indeed, speech on T-shirts is as protected as speech in books. Under the GLSO’s view, a book publisher that is opposed to (say) Scientology could be required to print pro-Scientology books. Likewise, a printer that hates Nazi ideology could be required to print pro-Nazi leaflets in those jurisdictions — such as Washington, D.C. and Seattle — that ban public accommodations discrimination based on political affiliation. That, it seems to me, can’t be constitutional: Though the publishers (or the T-shirt printer) would be required to produce speech, rather than utter or display it himself, the creation of speech is itself speech, and compelled creation of speech is a speech compulsion.

Readers of the blog might recognize this as much the same issue involved in Elane Photography v. Willock, the New Mexico wedding photographer case that is still pending before the New Mexico Court of Appeals. There, though, some people argued that such photographs aren’t sufficiently ideologically significant, and that therefore there isn’t a First Amendment problem with requiring a wedding photographer to photograph same-sex commitment ceremonies. Here, the printer is being required to produce T-shirts — or, as I said, it could just as well be books or leaflets — that express support for a clearly ideological event. I think both the photographer and the T-shirt printer should win, but in any event the T-shirt printer’s case strikes me as especially strong.

3. What about the free exercise of religion, assuming that Blaine Adamson sincerely believes that it would violate his religious obligations to print T-shirts that promote a gay pride event?

Employment Division v. Smith (1990) held that the Free Exercise Clause does not generally require the government to give religious exemptions from generally applicable laws. But there’s language in the case that suggests such exemptions might be required when there’s also some sort of other constitutional claim involved (that’s the so-called hybrid rights theory). Some courts have therefore concluded that a Free Exercise Clause claim combined with some other claim — here, a compelled speech claim — might prevail even if each claim separately wouldn’t. I doubt that this makes sense, but there is some authority for this, including in Kentucky, see Triplett v. Livingston County Bd. of Ed. (Ky. Ct. App. 1997).

Moreover, the Kentucky Supreme Court is now considering whether it should read the Kentucky Constitution as generally requiring religious exemptions from generally applicable laws. I’ve blogged before about such state constitutional protections, and about a dozen states have indeed read their state constitutional religious freedom guarantees as providing more protection from generally applicable laws than the Free Exercise Clause does.

If such a presumptive right to a religious exemption is recognized, whether under the Free Exercise Clause “hybrid rights” theory or a state constitutional theory, then the question is whether the government can rebut that presumption, by showing that denying the exemption is narrowly tailored to a compelling government interest. I discussed this in some measure as to the wedding photographer case (which is similar to this case in this respect), and I don’t want to make this long post even longer.

But the short summary is that (1) this “strict scrutiny” test is quite mushy in religious exemption cases, and is much more pro-government than the “strict scrutiny” applied to content-based speech restrictions or race classifications, but (2) there’s a strong argument that the law can’t pass strict scrutiny in this situation: It’s not at all clear that the government has a compelling interest in preventing private discrimination against ideological messages associated with gay rights (even if it does have a compelling interest in preventing private discrimination against individuals).

In any event, though, I think that Hands On Originals’ compelled speech claim should be sufficient here, even independently of any religious exemption claim. Any printer, whether religious or not, has a First Amendment right to choose what messages it will print and what messages it won’t print.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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