From this morning's 2-to-1 Eighth Circuit decision in Telescope Media Group v. Lucero, written by Judge David Stras and joined by Judge Bobby Shepherd (Judge Jane Kelly dissenting in major part):

Because the First Amendment allows the Larsens to choose when to speak and what to say, we reverse the dismissal of two of their claims and remand with instructions to consider whether they are entitled to a preliminary injunction [which, given the majority's legal analysis, seems nearly certain (unless the Eighth Circuit rehears the case en banc or the Supreme Court agrees to hear it)-EV].

Carl and Angel Larsen wish to make wedding videos. Can Minnesota require them to produce videos of same-sex weddings, even if the message would conflict with their own beliefs? The district court concluded that it could and dismissed the Larsens' constitutional challenge to Minnesota's antidiscrimination law.

Here's the majority's explanation of the facts:

The Larsens now wish to make films that promote their view of marriage as a "sacrificial covenant between one man and one woman." To do so, they want to begin producing wedding videos, but only of opposite-sex weddings. According to the Larsens, these videos will "capture the background stories of the couples' love leading to commitment, the [couples'] joy[,] … the sacredness of their sacrificial vows at the altar, and even the following chapters of the couples' lives." The Larsens believe that the videos, which they intend to post and share online, will allow them to reach "a broader audience to achieve maximum cultural impact" and "affect the cultural narrative regarding marriage."

The Larsens "gladly work with all people—regardless of their race, sexual orientation, sex, religious beliefs, or any other classification." But because they "are Christians who believe that God has called them to use their talents and their company to … honor God," the Larsens decline any requests for their services that conflict with their religious beliefs. This includes any that, in their view, "contradict biblical truth; promote sexual immorality; support the destruction of unborn children; promote racism or racial division; incite violence; degrade women; or promote any conception of marriage other than as a lifelong institution between one man and one woman."

The Larsens, who own and operate Telescope Media Group, use their "unique skill[s] to identify and tell compelling stories through video," including commercials, short films, and live-event productions. They exercise creative control over the videos they produce and make "editorial judgments" about "what events to take on, what video content to use, what audio content to use, what text to use … , the order in which to present content, [and] whether to use voiceovers."

Minnesota authorities interpret the state's ban on sexual orientation discrimination in public accommodations as "requiring the Larsens to produce both opposite-sex- and same-sex-wedding videos, or none at all," and "[i]f the Larsens enter the wedding- video business, their videos must depict same- and opposite-sex weddings in an equally 'positive' light."

The majority held (correctly, I think) that applying this law to the Larsens would unconstitutionally compel speech, as well as unconstitutionally restricting speech:

[A.] The Larsens' videos are a form of speech that is entitled to First Amendment protection. The Supreme Court long ago recognized that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." …

Although the Larsens do not plan to make feature films, the videos they do wish to produce will convey a message designed to "affect public attitudes and behavior." According to their complaint, they will tell "healthy stories of sacrificial love and commitment between a man and a woman," depict marriage as a divinely ordained covenant, and oppose the "current cultural narratives about marriage with which [the Larsens] disagree." By design, they will serve as a "medium for the communication of ideas" about marriage. And like the creators of other types of films, such as full-length documentaries, the Larsens will exercise substantial "editorial control and judgment," including making decisions about the footage and dialogue to include, the order in which to present content, and whether to set parts of the film to music. The videos themselves are, in a word, speech….

The complaint makes clear that the Larsens' videos will not just be simple recordings, the product of planting a video camera at the end of the aisle and pressing record. Rather, they intend to shoot, assemble, and edit the videos with the goal of expressing their own views about the sanctity of marriage. Even if their customers have some say over the finished product, the complaint itself is clear that the Larsens retain ultimate editorial judgment and control.

[B.] It also does not make any difference that the Larsens are expressing their views through a for-profit enterprise. In fact, in holding that motion pictures are protected by the First Amendment, the Supreme Court explicitly rejected the idea that films do not "fall within the First Amendment's aegis [simply] because" they are often produced by "large-scale business[es] conducted for private profit." …

[C.] Minnesota's position is that it is regulating the Larsens' conduct, not their speech. To be sure, producing a video requires several actions that, individually, might be mere conduct: positioning a camera, setting up microphones, and clicking and dragging files on a computer screen. But what matters for our analysis is that these activities come together to produce finished videos that are "medi[a] for the communication of ideas." See also Brown v. Entm't Merchs. Ass'n (2011) ("Whether government regulation applies to creating, distributing, or consuming speech makes no difference.").

If we were to accept Minnesota's invitation to evaluate each of the Larsens' acts individually, then wide swaths of protected speech would be subject to regulation by the government. The government could argue, for example, that painting is not speech because it involves the physical movements of a brush. Or it could claim that publishing a newspaper is conduct because it depends on the mechanical operation of a printing press. It could even declare that a parade is conduct because it involves walking. Yet there is no question that the government cannot compel an artist to paint, demand that the editors of a newspaper publish a response piece, or require the organizers of a parade to allow everyone to participate….

[D.] Minnesota's interpretation of the MHRA interferes with the Larsens' speech in two overlapping ways. First, it compels the Larsens to speak favorably about same-sex marriage if they choose to speak favorably about opposite-sex marriage. Second, it operates as a content-based regulation of their speech….

[1.] To apply the MHRA to the Larsens in the manner Minnesota threatens is at odds with the "cardinal constitutional command" against compelled speech. The Larsens do not want to make videos celebrating same-sex marriage, which they find objectionable. Instead, they wish to actively promote opposite-sex weddings through their videos, which at a minimum will convey a different message than the videos the MHRA would require them to make. Even if the Larsens' desire to selectively speak is "provocative" and "stirs people to anger," Minnesota cannot "coerce[ them] into betraying their convictions" and promoting "ideas they find objectionable." Compelling speech in this manner, as the Supreme Court made clear in Janus, "is always demeaning." This is especially true here, because Minnesota insists that the Larsens must be willing to convey the same "positive" message in their videos about same-sex marriage as they do for opposite-sex marriage.

Minnesota attempts to downplay this injury by pointing out that the MHRA would not require the Larsens to convey any specific message in their videos. Even if the Larsens must be willing to produce "positive" videos about same-sex marriage, Minnesota argues, they need not actually do so unless a customer requests a film with this point of view.

Even aside from its implausibility—for it seems unlikely that any same-sex couple would request a video condemning their marriage—this argument does not get Minnesota far under First Amendment doctrine. The Supreme Court has recognized that the government still compels speech when it passes a law that has the effect of foisting a third party's message on a speaker. In Hurley, for example, it held that Massachusetts could not use its public-accommodation law to require the sponsors of a private parade to include a group of gay, lesbian, and bisexual individuals who wished to march while "carrying [their] own banner." The Court explained that compelling the inclusion of others impermissibly "declar[ed] the sponsors' speech itself to be [a] public accommodation" in a way that "alter[ed] the expressive content of their parade."

Similarly, in Tornillo, the Supreme Court addressed a Florida statute that required newspapers that published attacks on the "personal character or official record" of political candidates to publish the candidates' responses too, free of cost. Forced inclusion, the Court reasoned, "fail[ed] to clear the barriers of the First Amendment" because it impermissibly "intru[ded] into the function of the editors." The lesson from Tornillo is that the First Amendment is relevant whenever the government compels speech, regardless of who writes the script.

[2.] The MHRA also operates in this case as a content-based regulation of the Larsens' speech, even if, as the Supreme Court has recognized, the MHRA does not, "[o]n its face, … aim at the suppression of speech." A content-based regulation "[m]andat[es] speech that a speaker would not otherwise make" or "exacts a penalty on the basis of the content of" speech. By treating the Larsens' choice to talk about one topic—opposite-sex marriages—as a trigger for compelling them to talk about a topic they would rather avoid—same-sex marriages—the MHRA does both at once. In fact, by requiring the Larsens to convey "positive" messages about same-sex weddings, it even goes a step further.

The Supreme Court's decision in Tornillo highlights the problems with content-based regulations. Even if a regulation that requires speech does not directly "prevent[ speakers] from saying anything [they] wish[]," it still exacts a penalty. In Tornillo, the penalty threatened to drive "editors [to] conclude that the safe course [was] to avoid controversy" and to simply not "publish[] news or commentary arguably within the reach of the … statute." Here, "the safe course" for the Larsens would be to avoid the wedding-video business altogether. Yet this type of compelled self-censorship, a byproduct of regulating speech based on its content, unquestionably "dampens the vigor and limits the variety of public debate."

{The allegations here may well be more troubling from a First Amendment perspective than the facts of Tornillo. In that case, all the newspaper had to do was reproduce verbatim an opinion piece written by someone else. The MHRA, in contrast, would require the Larsens to use their own creative skills to speak in a way they find morally objectionable.}

[E.] Laws that compel speech or regulate it based on its content are subject to strict scrutiny, which will require Minnesota, at a minimum, to prove that the application of the MHRA to the Larsens is "narrowly tailored to serve [a] compelling state interest[]." …

The State asserts an interest in ensuring "that all people in Minnesota [are] entitled to full and equal enjoyment of public accommodations and services." (internal quotation marks and citation omitted). This interest has a substantial constitutional pedigree and, generally speaking, we have no doubt that it is compelling. For example, the Supreme Court has said that antidiscrimination laws typically "are well within the State's … power to enact when a legislature has reason to believe that a given group is the target of discrimination." Indeed, the MHRA itself withstood a constitutional challenge after Minnesota applied it to compel a "large and basically unselective" social club to accept female members. And like the dissent, we have little doubt that Minnesota had powerful reasons for extending the MHRA to protect its citizens against sexual-orientation discrimination.

But that is not the point. Even antidiscrimination laws, as critically important as they are, must yield to the Constitution. And as compelling as the interest in preventing discriminatory conduct may be, speech is treated differently under the First Amendment. See Hurley ("While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government."). As the Supreme Court has explained, even if the government may prohibit "the act of discriminating against individuals in the provision of publicly available goods, privileges, and services," it may not "declar[e] [another's] speech itself to be [a] public accommodation" or grant "protected individuals … the right to participate in [another's] speech."

Hurley is particularly instructive. When Massachusetts forced the organizers of a private parade to include a group that wished "to march in the parade as a way to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals," the Supreme Court concluded that applying the State's public-accommodation law in this way violated the organizers' freedom of speech. Although antidiscrimination laws are generally constitutional, the Court reasoned, a "peculiar" application that required speakers "to alter the[ir] expressive content" was not. In short, the Court drew the line exactly where the Larsens ask us to here: to prevent the government from requiring their speech to serve as a public accommodation for others.

Similarly, in Dale, the Supreme Court held that the Boy Scouts had the right to expel a gay-rights activist, despite a New Jersey antidiscrimination law that otherwise prohibited the action. The reason, the Court said, was that the Boy Scouts' opposition to homosexuality was expressive and "the forced inclusion of [the activist] would [have] significantly affect[ed] its expression." Like Hurley, Dale makes clear that once conduct crosses over to speech or other expression, the government's ability to regulate it is limited.

As these cases demonstrate, regulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be. It is a "bedrock principle … that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." After all, the Westboro Baptist Church could carry highly inflammatory signs at military funerals, the Nazis could march in areas heavily populated by Jewish residents, and an activist could burn the American flag as a form of political protest….

Indeed, if Minnesota were correct, there is no reason it would have to stop with the Larsens. In theory, it could use the MHRA to require a Muslim tattoo artist to inscribe "My religion is the only true religion" on the body of a Christian if he or she would do the same for a fellow Muslim, or it could demand that an atheist musician perform at an evangelical church service. In fact, if Minnesota were to do what other jurisdictions have done and declare political affiliation or ideology to be a protected characteristic, then it could force a Democratic speechwriter to provide the same services to a Republican, or it could require a professional entertainer to perform at rallies for both the Republican and Democratic candidates for the same office….

[F.] Even so, Minnesota argues that we should apply intermediate scrutiny based on a theory that, once again, turns on the distinction between conduct and speech. Specifically, when "'speech' and 'nonspeech' elements are combined in the same course of conduct" and the government seeks to neutrally regulate the non-speech element, intermediate scrutiny applies under the incidental-burden doctrine. According to Minnesota, the MHRA only incidentally burdens speech because it neutrally regulates "commercial conduct and economic activity" and requires the Larsens to do nothing more than provide "services to customers regardless of their sexual orientation."

The problem with this theory, even aside from the fact that the MHRA is not content neutral, is that Minnesota does not actually seek to regulate non-speech activity. The "commercial conduct" and "economic activity" to which Minnesota refers is the making of the videos themselves, which, as we have already explained, are speech. Indeed, Minnesota cannot specifically identify anything else, meaning that this is just a repackaging of its theory that making the videos is conduct, not speech.

Importantly, the fact that Minnesota is not shy about its belief that it can regulate the videos themselves distinguishes this case from other applications of antidiscrimination laws that actually do target conduct, which are generally constitutional even when they incidentally affect speech. An employment-discrimination law, for example, can unquestionably "require an employer to take down a sign reading 'White Applicants Only.'" And a public-accommodation law requiring a restaurant to serve people of all races, genders, and sexual orientations will have the incidental effect of requiring servers to speak to customers to take their orders. But these consequences are incidental because the relevant laws target the activities of hiring employees and providing food, neither of which typically constitutes speech. Here, by contrast, Minnesota is targeting speechitself.

{In fact, Minnesota's position intrudes on the Larsens' speech in yet another way. In its view, the MHRA would not allow the Larsens to even advertise what they have in mind for their wedding videos. The district court upheld this limitation on the theory that "telling potential customers that a business will discriminate … is part of the act of … discrimination itself."

This analysis, however, rests on a faulty premise. If creating videos were conduct that Minnesota could regulate, then the State could invoke the incidental- burden doctrine to forbid the Larsens from advertising their intent to engage in discriminatory conduct. But in this case, Minnesota cannot compel the Larsens to speak, so it cannot force them to remain silent either.}

Minnesota also suggests that a lesser form of scrutiny is appropriate because the Larsens can say that they disapprove of same-sex marriage in some other way. But just like New Hampshire could not "require [drivers] to display the state motto" Live Free or Die on their license plates, even if they could disavow the motto through "a conspicuous bumper sticker," so too would a disclaimer here be inadequate. The reason is that the constitutional "protection of a speaker's freedom would be empty" if "the government could require speakers to affirm in one breath that which they deny in the next." …

[G.] [In Rumsfeld v. FAIR, l]aw schools, which invited and hosted recruiters of all types, objected to hosting the military because of a disagreement with policies that excluded gays and lesbians from serving. Federal law, however, required the schools to give equal access to military recruiters or risk losing federal funding. The schools sued, claiming that they had a First Amendment right to exclude military recruiters from campus. The Supreme Court disagreed, even if the schools had to "send e-mails [and] post notices on bulletin boards on [the recruiters'] behalf"—both "elements of speech."

The Supreme Court upheld the law because it did not interfere with the law schools' expression or coopt their speech. Simply hosting recruiters was not speech, according to the Court, so the "accommodation of a military recruiter's message" did not "sufficiently interfere with any message of the school[s]." Besides, just like the mall owner in PruneYard, the schools "remain[ed] free … to express whatever views they may have [had] on the military's congressionally mandated employment policy." Cases like Hurley, by contrast, involved unconstitutionally compelled speech because "the complaining speaker's own message was affected by the speech it was forced to accommodate."

The facts of the case, as pleaded by the Larsens, are much closer to Hurley than to … FAIR. Rather than serving as a forum for the speech of others, the Larsens' videos will carry their "own message." The MHRA interferes with their message by requiring them to say something they otherwise would not. The Larsens, then, lose "the autonomy to choose the content of [their] own message," which violates the "cardinal constitutional command" against compelled speech….

[H.] Consistent with the Supreme Court's instruction that antidiscrimination laws "do not, as a general matter, violate the First … Amendment[],"our holding leaves intact other applications of the MHRA that do not regulate speech based on its content or otherwise compel an individual to speak. But when, as here, Minnesota seeks to regulate speech itself as a public accommodation, it has gone too far under Hurley and its interest must give way to the demands of the First Amendment.