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Unfortunate: ACLU On The Wrong Side Of A Free Speech Case

from the really-now? dept

Let me start this off by making two things clear, even though I don't think it should matter for this story. First, I strongly support the rights of gays and lesbians to marry if they choose to. In fact, I find it both depressing and shameful that this is even a debate today or that people have had to fight to change laws to make this possible. And I look forward to the time in the (hopefully) not too distant future, where the world looks back on the fights against allowing such a thing and recognizes it for what it is: a dark day in our history, in which governments were trying to tell people who they can and cannot love.

Second: I'm a big, big supporter of the ACLU and I think they (normally) do amazing work protecting our civil liberties -- even in situations where others might shy away. I know many people who work there, and consider them friends. The reputation of the ACLU in taking on cases in which they support individuals or groups with abhorrent positions is a very good thing -- such as the very famous case of the ACLU defending the rights of neo-Nazis to march in Skokie, Illinois. It is possible to defend the free speech rights of those whose views you find morally abhorrent. And the ACLU has a pretty good track record of doing that.

So I'm left confused by the news that the ACLU is on what I believe is the very wrong side of a case involving a photographer who has a moral objection to gay marriage, and has refused to photograph their weddings. Personally, I think that photographer Elaine Huguenin is on the wrong side of history with her views on gay marriage. But I have tremendous problems with the idea that a New Mexico law against discriminating against gays and lesbians automatically requires her to photograph their weddings and to then "tell their story." Huguenin argues that forcing her to tell their story when she doesn't want to do so violates her First Amendment rights against compelled speech.

Of course, I also think that there's a First Amendment right for everyone else to explain why they shouldn't want to hire Huguenin in the first place for holding such views. But it's disappointing to see the ACLU on the other side, and actually willing to argue that the First Amendment is somehow "less important" than making Huguenin photograph a wedding she doesn't want to photograph. That's what the ACLU's Louise Melling told the NY Times:
There are constitutional values on both sides of the case: the couple’s right to equal treatment and Ms. Huguenin’s right to free speech. I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.

Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. Huguenin acted from “heartfelt convictions.”

But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.
Except, as Reason rightly points out, that's not true. there aren't Constitutional issues on both sides.
... the Constitution guarantees equal treatment by the government, not by private individuals or organizations. The 14th Amendment cannot justify requiring photographers to treat all couples equally any more than the First Amendment can justify requiring publishers to treat all authors equally. By erroneously suggesting that deciding Huguenin's case means choosing between competing "constitutional values," [the NY Times] lends cover to the American Civil Liberties Union, which in this case is arguing that Huguenin's civil liberties should be overridden by a principle that cannot be found in the Bill of Rights...
So while I strongly support equal rights for everyone, and am greatly saddened that people out there are still opposed to things like gay marriage, I'm equally troubled by the idea that the government can force someone to express themselves in a manner that they are uncomfortable doing. The government absolutely should be required to treat everyone equally and not discriminate on the basis of who they're attracted to. But it's going way too far to argue that a private business should be forced both to do business with someone, but also to create expression that they personally disagree with.

And, yes, there is a reasonable concern that allowing a photographer (or someone in another profession) to discriminate the services they provide is an obnoxious and discriminatory practice -- but it's one that is rather easily solved without government compelled work and speech: just by letting the world know of the photographer's views, which would hopefully have a negative impact on her business. Compelling her to speak, on the other hand, is tremendously problematic. And it seems to go against most things that I thought the ACLU stood for.


Filed Under: first amendment, free speech, gay marriage, new mexico
Companies: aclu


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  1. identicon
    Pragmatic, 18 Dec 2013 @ 9:30am

    Re: Re: Re: Re: Re: Re:

    The issue of gay marriage is only thirty years or so old, according to Wikipedia, the result of two male students wanting to wed. Before that, no one but Caligula had even considered it.

    The reason it's come up is because of laws that provide special favors to married couples, e.g. health or death benefits. That means that, in states where gay marriage is not recognised, you can't even visit your partner in hospital because they don't recognise your relationship.

    With each law that infringes on their rights to be treated as a couple or as members of a family, or that prohibits acts that take place in private between consenting adults, we create a longer chain to tangle ourselves up with. We used to pretend it doesn't exist but gay won't go away because some of us find it objectionable. We need to learn to accept it and treat gay people fairly, otherwise, they do what every oppressed group in history has done: fight back till they win. And they will. Because you do when your back is against the wall.

    We really need to stop trying to regulate human relationships and stay the hell out of people's bedrooms. That's where all of this has come from. It's why I can't stand authoritarians. Ultimately, they are responsible for this, and the harder they try to force the genie back in the bottle (discourage all mention of homosexuality and force them all back in the closet), the more likely they are to simply break the damn thing. It's too late. It's here now, and the world hasn't come to an end so live and let live.

    As for the photographer, it's unfortunate that she has taken this stand, but if people want to go against the grain, let 'em. The last thing we need is to live in a world where you have to watch every word you say in case you end up in jail. Approved speech. All comments and blog posts, etc., checked for political correctness and the risk of being sent to reeducation camps if you say the wrong thing. It's getting like this in the UK, now, isn't it? Do we want it here? No, thank you.

    Bear in mind that, considering the political climate, this could go either way. You don't want to be crushed beneath the boot of the extreme left or right. All extremism is harmful and restrictive, after all.

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