Free Speech and Public Accommodations Law Square Off in Court

The Supreme Court’s decision in 303 Creative LLC v. Elenis did not need to substantively address what counts as expressive activity nor the issue of whose speech was being constrained because the stipulations in the case resolved those issues for the Court. 600 U.S. 570 (U.S. 2023).

However, these issues remain important and will largely determine what lines of business or business activities are not subject to generally applicable public accommodations laws in the United States. If the conduct is expressive activity and if the speech to be suppressed is the speech of the business owner, then it is likely that a First Amendment challenge to public accommodations laws regulating those activities will succeed.

These issues are squarely presented in the case of Emilee Carpenter, LLC v. James, 2024 U.S. App LEXIS 17099 (2d Cir. July 12, 2024).

The Second Circuit’s recent decision remanded the case back to the district court with instructions to make findings on these very issues. The plaintiff in this case filed a pre-enforcement action against the New York Attorney General alleging that New York’s public accommodations laws are unconstitutional under the First and Fourteenth Amendments as applied to her business.

Similarly to the plaintiff in the recent Supreme Court case, 303 Creative, Ms. Carpenter is a wedding photographer who seeks to run her business consistent with her religious beliefs. She argued that three provisions of the New York State Human Rights Law are at issue. She contends that the NYSHRL accommodations clause, the denial clause, and the unwelcome clause all violate her rights pursuant to the First Amendment, as well as other claims not discussed herein that were dismissed. The district court dismissed all of her claims, and Ms. Carpenter appealed.

Upon appeal, the Second Circuit held the case in abeyance until the Supreme Court decided 303 Creative. After waiting for SCOTUS, the Second Circuit reversed the district court as to Ms. Carpenter’s First Amendment claim and sent the case back to the district court to determine whether a preliminary injunction should be issued.

The Second Circuit found that Ms. Carpenter’s complaint was substantially similar to the stipulated facts in 303 Creative and thus stated a claim. They also found that the district court’s decision to deny an injunction was based on an error of law, asserting that the issue was moot based on the substantive dismissal. However, the Second Circuit refused to enter a preliminary injunction.

The Second Circuit explained that they had the power to issue the injunction but chose not to in order to give the district court the opportunity to further develop the factual record. These details may make a difference in such a case, especially when determining whether these laws “compel Carpenter’s expressive activity as contemplated by 303 Creative.” Carpenter, at 20.

The district court must determine whether the law at issue regulates “nonexpressive conduct” of a commercial nature—perhaps with an “incidental burden on speech”—or whether the law as applied compels what the Court in 303 Creative called “pure speech” or “expressive activity.” Carpenter, at 21 (cleaned up). They must “consider whether the good or service at issue amounts to a medium for the communication of ideas.” Carpenter, at *22-23 (cleaned up).

The Second Circuit also looked to Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (U.S. 1995) for guidance on this type of issue. The district court will need to determine whether the photographer’s speech is at issue or whether the speech is really the couple's expressive conduct and not the photographer’s.

The Second Circuit also held that the district court needs to determine whether the plaintiff’s “blogging is more akin to, for instance, advertisement than to a service Carpenter offers to the general public, which her customers purchase from her—in other words, whether Carpenter’s blogging is a good or service regulated by New York’s public accommodations laws.” Carpenter, at *28-29.

This case will likely set the battle lines at the Second Circuit. How the Second Circuit resolves the issue will be debated by other circuit courts and, ultimately, will likely have to be resolved by the Supreme Court.