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Telescope Media Group v. Lucero

United States Court of Appeals, Eighth Circuit

August 23, 2019

Telescope Media Group, a Minnesota corporation; Carl Larsen; Angel Larsen, the founders and owners of Telescope Media Group Plaintiffs - Appellants
Rebecca Lucero, in her official capacity as Commissioner of the Minnesota Department of Human Rights; Keith Ellison, in his official capacity as Attorney General of Minnesota Defendants - Appellees Foundation for Moral Law; Center for Constitutional Jurisprudence; Sherif Girgis; Cato Institute; 11 Legal Scholars; Ryan T. Anderson, Ph.D.; African-American and Civil Rights Leaders; State of Alabama; State of Arkansas; State of Kansas; State of Louisiana; State of Missouri; State of Nebraska; State of Oklahoma; State of South Carolina; State of Texas; State of West Virginia Amici on Behalf of Appellants American Civil Liberties Union; American Civil Liberties Union of Minnesota; District of Columbia; State of California; State of Connecticut; State of Delaware; State of Hawaii; State of Illinois; State of Iowa; State of Maine; State of Maryland; State of Massachusetts; State of New Jersey; State of New Mexico; State of New York; State of Oregon; State of Pennsylvania; State of Rhode Island; State of Vermont; State of Virginia; State of Washington; Americans United For Separation of Church and State; Anti-Defamation League; Bend the Arc, A Jewish Partnership for Justice; Central Conference of American Rabbis; Interfaith Alliance Foundation; Lambda Legal Defense and Education Fund; Muslim Advocates; National Council of Jewish Women; People for the American Way Foundation; Union for Reform Judaism; Women of Reform Judaism Amici on Behalf of Appellees

          Submitted: October 16, 2018

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before SHEPHERD, KELLY, and STRAS, Circuit Judges.


         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. 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.


         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."

         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 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."

         Minnesota has a different idea.[1] Relying on two provisions of the Minnesota Human Rights Act ("MHRA"), it claims that a decision to produce any wedding videos requires the Larsens to make them for everyone, regardless of the Larsens' beliefs and the message they wish to convey. The first provision states:

It is an unfair discriminatory practice . . . to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of . . . sexual orientation.

Minn. Stat. § 363A.11, subdiv. 1(a)(1). The second provides:

It is an unfair discriminatory practice for a person engaged in a trade or business or in the provision of a service . . . to intentionally refuse to do business with, to refuse to contract with, or to discriminate in the basic terms, conditions, or performance of the contract because of a person's . . . sexual orientation . . ., unless the alleged refusal or discrimination is because of a legitimate business purpose.

Id. § 363A.17(3).

         Minnesota reads these two provisions as requiring the Larsens to produce both opposite-sex- and same-sex-wedding videos, or none at all. According to Minnesota, the Larsens' duty does not end there. If the Larsens enter the wedding-video business, their videos must depict same- and opposite-sex weddings in an equally "positive" light. Oral Argument at 26:08-27:15. If they do not, Minnesota has made clear that the Larsens will have unlawfully discriminated against prospective customers "because of" their sexual orientation.

         The Larsens have sued Minnesota in federal district court seeking injunctive relief preventing Minnesota from enforcing the MHRA against them. Their principal theory is that it is unconstitutional under the Free Speech Clause of the First Amendment to require them to make same-sex-wedding videos. They also raise free-exercise, associational-freedom, equal-protection, and unconstitutional-conditions claims, as well as an argument that the MHRA is unconstitutionally vague.

         At this juncture, all that is before us are the allegations of the Larsens' complaint. Early on, the district court granted Minnesota's motion to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). It also denied the Larsens' request for a preliminary injunction, but only because it had already decided to dismiss their lawsuit. According to the court, the Larsens' free-speech claim failed as a matter of law because the MHRA serves an important governmental interest- preventing discrimination-without limiting more speech than necessary to accomplish this goal. It also ruled that the MHRA did not violate any of the other constitutional rights identified by the Larsens.


         Before addressing the merits, we must determine whether the Larsens have standing. At this stage, we assume the allegations in the complaint are true and view them in the light most favorable to the Larsens. See Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 933 n.4 (8th Cir. 2012).

         To have standing, the Larsens must establish (1) an injury in fact; (2) a causal connection between the injury and the challenged law; and (3) that a favorable decision is likely to redress their injury. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). There is no doubt that the Larsens' allegations satisfy the second and third requirements: any injury would be traceable to the MHRA and would be redressed by a judicial decision enjoining Minnesota from enforcing the law against them. The only real question is whether the Larsens have suffered an injury in fact.

         Although a harm must be "actual or imminent, not conjectural or hypothetical," to constitute an injury in fact, id. at 1548 (citation omitted), a plaintiff need not wait for an actual prosecution or enforcement action before challenging a law's constitutionality, see Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158- 59 (2014). In fact, all a plaintiff must do at the motion-to-dismiss stage is allege "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder." Id. at 159 (citation omitted); see also 281 Care Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir. 2011) (explaining that even "[s]elf-censorship can . . . constitute injury in fact" for a free-speech claim when a plaintiff reasonably decides "to chill his speech in light of the challenged statute").

         The Larsens' constitutional claims meet this test. The Free Speech Clause of the First Amendment covers films, see Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952), so the videos the Larsens intend to make are "affected with a constitutional interest," Susan B. Anthony List, 573 U.S. at 159 (citation omitted). The Larsens' desire "to engage in a course of conduct" that includes the production of videos means that their other claims are affected with a constitutional interest too, regardless of the precise legal theory. Id. (citation omitted).

         Moreover, the Larsens have adequately alleged a "credible threat of enforcement." Id.; cf. Minn. Stat. § 363A.30, subdiv. 4 (establishing criminal penalties for certain violations). If the Larsens enter the wedding-video business and refuse to film same-sex weddings, Minnesota has made clear that it will view their actions as a violation of the MHRA. Indeed, Minnesota has publicly announced that the MHRA requires all private businesses, including photographers, to provide equal services for same- and opposite-sex weddings. It has even employed "testers" to target noncompliant businesses, and it has already pursued a successful enforcement action against a wedding vendor who refused to rent a venue for a same-sex wedding. Minnesota's active enforcement of the MHRA leaves us with little doubt that the Larsens will face legal consequences if they decide to start making wedding videos.[2]


         Having determined that the Larsens have standing, we now address their principal claim, which is that the wedding videos are speech and they have a First Amendment right to make them for only opposite-sex weddings. At this stage, our task is to review the complaint de novo to determine whether it alleges one or more actionable claims. United States ex rel. Raynor v. Nat'l Rural Utils. Co-op. Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012).


         The First Amendment, which applies to the states through the Fourteenth Amendment, prohibits laws "abridging the freedom of speech." U.S. Const. amend. I. It promotes the free exchange of ideas by allowing people to speak in many forms and convey a variety of messages, including those that "invite dispute" and are "provocative and challenging." Terminiello v. Chicago, 337 U.S. 1, 4 (1949). It also prevents the government from "[c]ompelling individuals to mouth support for views they find objectionable." Janus v. Am. Fed'n of State, Cty., & Mun. Emps., Council 31, 138 S.Ct. 2448, 2463 (2018). As the Supreme Court has made clear, "[t]here is no room under our Constitution for a more restrictive" approach because "the alternative would lead to standardization of ideas . . . by legislatures, courts, or dominant political or community groups." Terminiello, 337 U.S. at 4-5.

         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." Joseph Burstyn, 343 U.S. at 502; see also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66 (1981). Indeed, "[i]t cannot be doubted that motion pictures are a significant medium for the communication of ideas." Joseph Burstyn, 343 U.S. at 501. "They [can] affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression." Id.

         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." Id. 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. Id.; cf. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S.Ct. 1719, 1727 (2018) ("[R]eligious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression."). And like the creators of other types of films, such as full-length documentaries, the Larsens will exercise substantial "editorial control and judgment," Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974), 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 dissent reaches the opposite conclusion, but only by recasting or ignoring the allegations in the Larsens' complaint, [3] which at this stage we must accept as true. See Miller, 688 F.3d at 933 n.4. 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.

         It also does not make any difference that the Larsens are expressing their views through a for-profit enterprise. See post at 48. 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." Joseph Burstyn, 343 U.S. at 501; see also Masterpiece Cakeshop, 138 S.Ct. at 1745 (Thomas, J., concurring) ("[T]his Court has repeatedly rejected the notion that a speaker's profit motive gives the government a freer hand in compelling speech."). Other commercial and corporate entities, including utility companies and newspapers, have received First Amendment protection too. See Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 8 (1986) (plurality opinion) (collecting cases); Tornillo, 418 U.S. at 258; see also Citizens United v. FEC, 558 U.S. 310, 342 (2010) (collecting cases). The reason, the Court has said, is that they "contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster" no less than individuals do. Pac. Gas, 475 U.S. at 8 (plurality opinion) (internal quotation marks and citation omitted).

         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." Joseph Burstyn, 343 U.S. at 501; see also Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 792 n.1 (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. See, e.g., Tornillo, 418 U.S. at 256-58; Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 572-73 (1995). Speech is not conduct just because the government says it is.


         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.

         The Supreme Court has "held time and again that freedom of speech includes both the right to speak freely and the right to refrain from speaking at all." Janus, 138 S.Ct. at 2463 (internal quotation marks and citation omitted). As Janus recognized, the latter is perhaps the more sacred of the two rights. See id. at 2463- 64. After all, the "choice of a speaker not to propound a particular point of view . . . is presumed to lie beyond the government's power to control." Boy Scouts of Am. v. Dale, 530 U.S. 640, 654 (2000) (citation omitted).

         To apply the MHRA to the Larsens in the manner Minnesota threatens is at odds with the "cardinal constitutional command" against compelled speech. Janus, 138 S.Ct. at 2463. 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," Terminiello, 337 U.S. at 4, Minnesota cannot "coerce[ them] into betraying their convictions" and promoting "ideas they find objectionable," Janus, 138 S.Ct. at 2464. Compelling speech in this manner, as the Supreme Court made clear in Janus, "is always demeaning." Id. 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." 515 U.S. at 572-73. 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." Id.

         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. 418 U.S. at 244. 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." Id. at 258. The lesson from Tornillo is that the First Amendment is relevant whenever the government compels speech, regardless of who writes the script.

         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." Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984). 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. Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988) (quoting Tornillo, 418 U.S. at 256). 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. Cf. Reed v. Town of Gilbert, 135 S.Ct. 2218, 2227 (2015) (describing content-based regulations as those that operate based on "the topic discussed or the idea or message expressed").

         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. Tornillo, 418 U.S. at 256 (citation omitted). 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." Id. at 257. 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."[4] Id. (citation omitted).


         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[]." Reed, 135 S.Ct. at 2226; see also, e.g., Dale, 530 U.S. at 654 ("[T]he choice of a speaker not to propound a particular point of view . . . is presumed to lie beyond the government's power to control." (citation omitted)); Hurley, 515 U.S. at 573 ("[T]he fundamental rule of protection under the First Amendment[ is] that a speaker has the autonomy to choose the content of his own message."); cf. Janus, 138 S.Ct. at 2464 (suggesting that "a law commanding 'involuntary affirmation' of objected-to beliefs would require 'even more immediate and urgent grounds' than a law demanding silence" (emphasis added) (quoting W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943))); Gralike v. Cook, 191 F.3d 911, 919-20 (8th Cir. 1999) (applying strict scrutiny to a law forcing candidates to speak about term limits). In an as-applied challenge like this one, the focus of the strict-scrutiny test is on the actual speech being regulated, rather than how the law might affect others who are not before the court. See Phelps-Roper v. Ricketts, 867 F.3d 883, 896 (8th Cir. 2017).


         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." Hurley, 515 U.S. at 572. 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. Roberts, 468 U.S. at 621-22, 626-27. 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. See post at 31-32.

         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, 515 U.S. at 579 ("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." Id. at 572-73 (emphasis added).

         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," id. at 560-61, the Supreme Court concluded that applying the State's public-accommodation law in this way violated the organizers' freedom of speech, id. at 566. Although antidiscrimination laws are generally constitutional, the Court reasoned, a "peculiar" application that required speakers "to alter the[ir] expressive content" was not. Id. at 572-73 (emphasis added). 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. 530 U.S. at 644. 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." Id. at 650-52, 656; see also id. at 659 ("[T]he First Amendment prohibits the State from imposing [an inclusion] requirement through the application of its public accommodations law."). 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." Texas v. Johnson, 491 U.S. 397, 414 (1989); see also Masterpiece Cakeshop, 138 S.Ct. at 1731 ("[I]t is not . . . the role of the State or its officials to prescribe what shall be offensive."). After all, the Westboro Baptist Church could carry highly inflammatory signs at military funerals, see Snyder v. Phelps, 562 U.S. 443, 448- 49, 460-61 (2011), the Nazis could march in areas heavily populated by Jewish residents, see Nat'l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 43-44 (1977) (per curiam), and an activist could burn the American flag as a form of political protest, see Johnson, 491 U.S. at 399.

         The cases relied upon by Minnesota and the dissent are not to the contrary. In Roberts, for example, the Supreme Court emphasized that an all-male social club had failed to show that a law requiring the admission of female members "impose[d] any serious burdens on the male members' freedom of expressive association" or "impede[d] the organization's ability to engage in . . . protected activities or to disseminate its preferred views." 468 U.S. at 626-27; see also id. at 627 (highlighting that the law "impose[d] no restrictions on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members"). So too in Hishon v. King & Spalding, in which the Court emphasized that a law firm "ha[d] not shown how its ability to [exercise its expressive and associational rights] would be inhibited by a requirement that it consider [a woman] for partnership on her merits." 467 U.S. 69, 78 (1984). The unmistakable message is that antidiscrimination laws can regulate conduct, but not expression.

         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. See, e.g., D.C. Code § 2-1402.31; Seattle, Wash., Mun. Code §§ 14.06.010, .020(L), 030(B); cf. Hurley, 515 U.S. at 571-72 (recognizing that states have the power to create additional protected classes).


         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. Johnson, 491 U.S. at 407 (quoting United States v. O'Brien, 391 U.S. 367, 376 (1968)); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 26-27 (2010) (explaining that a regulation must be content-neutral under this doctrine). According to Minnesota, the MHRA only incidentally burdens speech because it neutrally ...

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