With nearly seven in 10 American adults worried about cultural and political threats to free speech, good news may be closer than you think. In fact, a recent court decision provides hope that free speech protections are trending upward, charting the course for future victories for all Americans.
Free speech was at the very center of Telescope Media Group v. Lucero. The case challenged the state’s attempt to force Christian filmmakers—with the threat of fines and jail time—to promote messages that violate their faith. On August 23, a three-judge panel of the US Court of Appeals for the 8th Circuit ruled 2-1 in favor of the filmmakers, overturning a lower court’s decision and giving that court a roadmap for how this case should move forward.
The win isn’t just a major victory for the filmmakers—it’s a game-changer. Last summer, when the US Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission on free exercise grounds, it did not even need to reach the free speech issue presented because Colorado’s hostility against cake artist Jack Phillips was so egregious.
But the issue that remained following Masterpiece, and the two prominent free speech cases also decided last summer—Janus and NIFLA—has now been extensively addressed for the first time at the federal appellate level. That’s great news for creative professionals everywhere, and it’s a huge sigh of relief for Telescope Media Group owners Carl and Angel Larsen.
Carl and Angel work with all people. They just don’t create films promoting all messages. So, while they often work with clients and collaborate on projects with people who don’t share their views on important subjects including marriage and sexuality, there are certain messages that the Larsens simply cannot express through their custom films for anyone.
Carl and Angel want to use their God-given talents and the storytelling power of film to promote their religious beliefs about marriage. But, according to Minnesota officials, state law mandates that if the Larsens create films celebrating marriage between one man and one woman, they must also create films promoting views about marriage that violate their beliefs, including films promoting same-sex marriages.
As the 8th Circuit pointed out in its ruling, “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. If they do not, Minnesota has made clear that the Larsens will have unlawfully discriminated against prospective customers ‘because of’ their sexual orientation.’”
Not wishing to wait around to get punished or thrown in jail, Carl and Angel filed a pre-enforcement lawsuit in December of 2016. They were disappointed when, nine months later, a district court judge not only ruled against them, but likened their case to that of a business owner asking for First Amendment protection for his “White Applicants Only” sign.
Not only was that far afield legally—which the 8th Circuit highlighted—it also overlooks the Larsens’ remarkable love and generosity. Two of the Larsens’ eight children are adopted from Ethiopia, and their practice of open-table hospitality, where they regularly “invite the world” into their home has put them at the dining room table with well over 1,000 guests over the last six years. Many of those visitors, including some who are gay or lesbian, as well as countless collaborators on various video projects, disagree with the Larsens on important issues, but that doesn’t mean they aren’t welcome at Carl and Angel’s home or business.
Drawing on the key distinction between the person and the message, the 8th Circuit took free speech head-on. The panel’s 2-1 majority ruled that the Larsens’ films are protected speech and that “the First Amendment allows the Larsens to choose when to speak and what to say.”
The Court made crystal clear that there is a world of difference between turning a person away because of who they are and turning down a message because of what it says. Citing precedent from the Supreme Court, the judges reiterated: “[t]he unmistakable message is that anti-discrimination laws can regulate conduct, but not expression.”
Filmmakers don’t surrender their freedom of speech when they choose to make a living through video storytelling. Those who create speech for a living are entitled to the full protection of the Constitution. That’s something we can all celebrate.Published in