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
    The Real Michael, 20 Dec 2013 @ 7:11am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Open question to the non-religious here

    "So, after eons of kicking, spitting, killing, maiming and discriminating against gays or those perceived as gay, folks are pissy? Where "folks" equates to anyone who may have had the tendency to use the term "those gays"? Folks that have been comfortable because they were "protected" in their bigotry and now... yeah, step it up."

    Here we go with the persecution complex. Nevermind that they're afforded all the same Constitutional rights as everyone else. But that's not good enough. No, they have to make a statement with their puffed-up special rights by taking private business owners to court, stepping all over their rights and seeking to ruin them financially.

    Here's a double-standard
    ------------------------
    Someone speaks out in favor of same-sex marriage: applauded by the mainstream media, politicians, gay activists, called brave and heroic (how, I don't know), etc.

    Someone speaks out in favor of traditional marriage: demonized by the mainstream media as hate-filled bigots, homophobes, someone inevitably demands a public apology, calls for him/her to lose their job.

    Yeah, that's real nice. And these are the same people who have the nerve to preach tolerance?


    Case in point: Phil Robertson. GQ Magazine asked him for his opinion on homosexuality and sin and he told them his opinion. In response, A&E fired him, just for expressing his Christian views, albeit somewhat crudely. Incidentally, someone started a Facebook page to boycott A&E just over a day ago and it's already received over 1.3 million likes. So Facebook, liberals that they are, responded by suspending that person's account. Nothing shady about that.

    The mainstream media should just come out and admit that they're really state-controlled subversives hellbent on dismantling our Constitution and ruining our country.

    "Ken is not right and he's not wrong, he's lashing out against what was once a very acceptable position at several different levels. Here he is a petulant man who is loosing some power over others that he may have once held that was supported and reinforced by like-minded folks. The seeds of hatred."

    The majority is opposed to same-sex marriage; the only reason it's even legalized is because of politicians overriding/ignoring popular referendum and forcing through legislation. Heck, the SCOTUS had the audacity to conclude that the only possible reason for voting for DOMA was out of hatred, which is pure bullcrap. More like the only reason they voted to overturn it was because of their desire to inject immorality into society and pave the way towards state-practiced discrimination against religion.

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