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
    Anonymous Coward, 23 Dec 2013 @ 9:12am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: It is complicated...

    The Real Michael:

    You really need to read a lot more before you make the statement "...show me a species evolving into another. You can't." That statement is erroneous. There are plenty of examples of evolution, through artificial selection and through natural selection, changing the characteristics of one species into a different species.

    For example, Brussel sprouts and broccoli are the result of millennia of selection by humans, slowly perfecting the transition from wild mustard to the species that we know today. Another example is the changes we have wrought in converting small maize to the huge ears of corn we know today. Indeed, modern corn is relatively inefficient in reproducing because of changes we selected in artificially evolving corn.

    While the examples above are examples of artificial selection, natural selection occurs in a similar way. A great modern example is the pepper moth, which slowly evolved to completely black with an increase in pollution, and which is now back to its original color, all in the space of 150 years. When something can change its color twice in 150 years, it takes little imagination to realize that other features can change more extensively over a long time frame.

    There are numerous examples of evolution that have taken place over the last 5,000 years as animals change in response to the environment. Assuming we survive to continue to document these changes, we will see more. Evolution is a theory only because not ALL aspects of the theory have been proven. However, many aspects benefited substantially from genetic or DNA testing, which confirmed suspected relationships between animals, including us. DNA testing had a chance to drive a significant nail into the Theory of Natural Selection, but instead, it further supported it.

    Going back to basics, the whole point of a theory is to codify a possible idea or concept into a system. Once codified, others may then determine whether facts either support the theory or support a different theory. In many cases, probably most cases, theories evolve with better knowledge. In the case of the Theory of Natural Selection, the facts overwhelmingly support the Theory of Natural Selection as opposed to any other theory, which includes spontaneous creation and divine creation. At this point, only one fact-supported and credible theory exists for how animals became the species that exist today, and faith-based instantaneous creation by a divine being is not on the list.

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