In Emilee Carpenter, LLC, dba Emilee Carpenter Photography v. James, (2d Cir., July 12, 2024), the U.S. 2nd Circuit Court of Appeals reversed and remanded a New York federal district court's dismissal of a free speech challenge by a wedding photographer to New York's public accommodation law that bars discrimination on the basis of sexual orientation. The photographer refuses because of her religious and personal beliefs to photograph same-sex weddings. The court held that the case must be remanded for further fact finding in light of the U.S. Supreme Court's intervening decision in 303 Creative LLC v. Elenis. The court said in part:
... [W]hether Carpenter’s actual wedding photography services constitute expressive conduct is an open threshold question for the district court to consider on remand...
To state a compelled speech claim, it is not enough for a plaintiff to show that the service at issue involves a medium of expression. The plaintiff must also demonstrate that the expressive activity is her own – that is, she created the expressive content herself or, by compiling or curating third-party content in some forum, she is also engaged in her own expressive activity....
Here, to the extent Carpenter is using her photographs or website to host the expressive content of third parties (such as the wedding couple who hired her), rather than her own, the district court must determine ... whether the law compels Carpenter’s own speech....
Specifically, the court should assess whether Carpenter’s blogging is more akin to, for instance, advertisement than to a service Carpenter offers to the general public, which her customers purchase from her—in other words, whether Carpenter’s blogging is a good or service regulated by New York’s public accommodations laws....
The court rejected the photographer's expressive association, free exercise, Establishment Clause and vagueness claims, saying in part:
Nowhere in her complaint does Carpenter allege that she offers as a service to the public her active religious participation in the weddings that she photographs. New York’s laws therefore do not require Carpenter to sing, pray, follow an officiant’s instructions, act as a “witness” of the union “before God,” or otherwise participate in any same-sex wedding....
Courthouse News Service and ADF report on the decision.
