Thursday, June 22, 2017

The Slants, Government Speech, and Elane Photography

by Michael Dorf
(cross-posted on Take Care)

The most important immediate impact of Monday's SCOTUS ruling in Matal v. Tam is that the Washington Redskins will be able to enjoy registered trademark protection, notwithstanding the offensiveness of their name. In invalidating the provision of federal trademark law that denied federal registration for any mark that would “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead,” neither Justice Alito's majority/plurality opinion nor Justice Kennedy's concurrence/concurrence in the judgment (joined by Justices Ginsburg, Sotomayor, and Kagan) relied on the fact that the respondent used the name "The Slants" ironically so as to "take it back." Thus the holding also applies to offensive trademarks that are used unironically, like the Washington Redskins, Chief Wahoo of the Cleveland Indians, and Trump Tower.

Meanwhile, a portion of Justice Alito's opinion that speaks for the full Court devotes substantial space to rejecting the argument that trademark registration is a form of "government speech." As Marty Lederman notes in a post on Balkinization, this part of the opinion addresses a straw man insofar as it contends that a trademark itself is not government speech; nobody said otherwise. But I do think that Justice Alito rightly understood that the asserted government interest in not wanting to be perceived as endorsing offensive trademarks by registering them is more or less the same interest that the government asserts in cases in which government speech is directly at issue.

And, as Prof. Lederman notes, the government did argue that registration is government speech. Read charitably, I think that both Justice Alito's opinion and Justice Kennedy's opinion legitimately aim to set limits on the disassociation interest. Perhaps Prof. Lederman is right that taking a shot at the government speech doctrine was neither necessary nor sufficient to decide Matal. But I'm nonetheless glad that the Court took the opportunity.

Taken together, the two opinions in Matal make clear that the 2015 Texas specialty license plate case--Walker v. Texas Div., Sons of Confederate Veterans, Inc.--was the high-water mark for the government speech doctrine and the disassociation interest. That's good news because, as I argued just after that case was decided, "Justice Breyer's majority opinion in [Walker] is so badly reasoned that it cannot be taken seriously at face value." Thanks to Matal, the government speech doctrine will not swallow the First Amendment.

Matal may have broader implications as well. Government speech is not the only context in which the disassociation interest is asserted. In recent years, most claims to opt out of general obligations such as those imposed by antidiscrimination law have been rooted in religion under statutes like the federal Religious Freedom Restoration Act (RFRA) and similar state RFRAs. But there have also been cases in which an opt-out was asserted as a matter of free speech. In cases like Elane Photography v. Willock, photographers, bakers, and florists argue that because they provide expressive services, it violates their right to free speech to forbid them from discriminating where--as in Elane Photography itself--providing service on a non-discriminatory basis would result in their "speaking" (through their photographs, cakes, and flower arrangements) messages with which they disagree (such as the message that same-sex relationships are properly solemnized in wedding ceremonies).

The photographer in Elane Photography lost, in part because, according to the New Mexico Supreme Court, there was no serious risk that the public would misattribute to Elaine Huguenin (the company's co-owner and chief photographer) a favorable view of same-sex relationships simply in virtue of her compliance with an antidiscrimination law. Any residual interest that expressive service providers might have in disassociating from a message with which they disagree could be addressed, the court said, by "a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws."

To be sure, cases like Elane Photography--in which an individual objects to being compelled by the government to speak a private message with which she disagrees--differ from government speech cases in one important respect. The state of Texas (in Walker) and the United States (in Matal) have interests in disassociating themselves from pro-Confederate and Asian-stereotyping messages, respectively, but they do not have a further, psychological, interest of the sort that may be present in the individual compelled speech cases.

As Vincent Blasi and Seana Shiffrin argued in chapter 12 of Constitutional Law Stories (which I edited), compelled speech disrespects individuals' interests in sincerity. Even if the speaker knows she is only mouthing the government's script under compulsion, the laudable desire to avoid what Blasi and Shiffrin call "performative dissonance" may lead the speaker who knows she cannot change what she says to change her thoughts to conform with the script. Thus, Blasi and Shiffrin contend, compelled speech can be a form of thought control.

Notably, however, the interest in avoiding compelled speech applies to individuals but not to the government, which is an artificial entity that lacks the relevant psychological capacities. Thus, the Court's effort to limit the government speech doctrine in Matal might not be sufficient to resolve cases like Elane Photography. One might think that the disassociation argument fails to ground a successful government speech defense in Matal and that it therefore also fails to ground a successful challenge to New Mexico's antidiscrimination law by Elane Photography, but think that Elane Photography and similarly situated bakers and florists ought to win their cases nonetheless based on the Blasi/Shiffrin argument.

One might think that, but I don't think that, because, extended to the antidiscrimination context,
the Blasi/Shiffrin argument proves too much. Their chapter chiefly discusses West Virginia State Bd. of Educ. v. Barnette, in which the government compelled schoolchildren to recite a government-approved creed (the Pledge of Allegiance). By contrast, antidiscrimination laws do not--except indirectly when applied to expressive businesses--compel expression of any sort. They forbid a form of conduct: discrimination.

To be sure, antidiscrimination laws don't just forbid any form of conduct. By forbidding the form of conduct they do, antidiscrimination laws effectively compel association. And the First Amendment protects the right not to associate, right?

Wrong, or more precisely, not exactly. There is a right of expressive association (and therefore a right of expressive disassociation) but not all instances of compelled association (i.e., prohibitions on discrimination) implicate that right. And once we have determined that compelled association in some context runs no serious risk of misleading the audience about the speaker's views, the internal effects of compulsion do not differ as between inherently expressive businesses--such as wedding photographers, bakers, and florists--and other businesses--such as rental hall providers, limousine drivers, and alcohol vendors. If we are worried about the internal impact of antidiscrimination law on the thoughts of persons subject to it, then we have at least as much of a reason to worry about the law's application to non-expressive conduct as we do to expressive conduct. The Blasi/Shiffrin concern that a photographer will see herself "saying" positive things about same-sex relationships with her photos and thus be influenced to change her views about such relationships applies with at least equal force to the limousine driver who sees himself driving a just-married same-sex couple from a wedding reception to the airport for their honeymoon. But to allow people engaged in non-expressive businesses to opt out of antidiscrimination law would fatally undermine antidiscrimination law.

Accordingly, although I think the Blasi/Shiffrin argument works well in the Barnette context (which is the only context in which they make it), it cannot fairly be extended to the antidiscrimination context without giving everybody--not just those engaged in expressive businesses--a right to opt out of antidiscrimination law on the spurious ground that they have a right not to be coerced to act in a way that is inconsistent with their beliefs.

That conclusion, in turn, means that if the claims of the likes of Elane Photography are to succeed, they must do so on the basis of the external effects of compelled speech. And the reasoning of Matal, if applied generally, makes such success more difficult by limiting the scope of the interest in disassociating from particular views. To my mind, that's good news.

Postscript: Even if claimants like Elane Photography are able to argue successfully that antidiscrimination laws infringe their right to free speech, they still can lose on the ground that the government interest in preventing discrimination outweighs their speech interest. For a thorough discussion of how courts do and should weigh such competing concerns in the religion context, see Nelson Tebbe's book, Religious Freedom in an Egalitarian Age.

2 comments:

Joe said...

If Alito's opinion here clashes with Breyer's earlier opinion, it is interesting that he joined the opinion over Kennedy's opinion (which the other liberals joined). Any particular reason for Breyer's choice here?

I appreciate the differentiation here of various cases. The public accommodations context, including the anti-discrimination rules, are different including as compared to something like a personal license plate. The same applies to the religious liberty claims. The public sector there is different. U.S. v. Lee.

As to the government compelled speech interest, there is some logic in providing some discretion. Local governments, e.g., promote various messages and should have discretion to do so without federal rules interfering in various respects. There can even be some "psychological" aspects here collectively, such as if the local population voted to promote a certain message. A sort of association claim.

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