Friday, August 23, 2019

Partial Expression and Anti-Discrimination Law

Today, the Eighth Circuit Court of Appeals, by a 2-1 vote (Judges Stras and Shepherd in the majority, with Judge Kelly dissenting), held that it was unconstitutional to apply Minnesota's anti-discrimination statute (which covers sexual orientation discrimination) to a videography company that wanted to get into the wedding video business but objected to filming gay weddings. Insofar as the statute required the videography company to treat same-sex and opposite-sex marriages alike (i.e., film both of them), it violated the videographer's free speech rights, since it effectively compelled them to express favorable attitudes towards same-sex marriages (which they in fact object to on religious grounds).

In the context of anti-BDS law debates and others, I've been writing a fair bit about how cases like this well-illustrate why liberals should be wary about endorsing sweeping interpretations of the First Amendment as conflicting with (and trumping) anti-discrimination claims. As "First Amendment Lochnerism" swells in influence, there is more and more of a risk of huge swaths of anti-discrimination law being struck down as unlawful discrimination. After all, anti-discrimination law inherently asks that people associate with those they'd rather not associate with, and implicitly register their approval of social relations they might not approve of. If this is interpreted as an affront to their free speech rights, then anti-discrimination law as a whole is in mortal peril.

That said, it is clearly the case that there are genuine and nettlesome free speech problems that can emerge in cases like this. And I do not think they can be ignored just because the plaintiff is engaged in for-profit work. Movie-making is, after all, often a for-profit business, yet it would be catastrophic if the government could say therefore there is no free speech rights available to directors or screen-writers in the content of their creations.

So -- are wedding videographers or photographers different? And if so, how?

The core distinction the majority seems to rely upon is that between "expressive" and "non-expressive" activity. Something like making a movie is an expressive act. It is artistic, it requires editorial judgment, it is the creation of art. Movies are thought of as a reflection of a creator's expressive vision; a medium for them to transmit a particular thought or view about a slice of the world. Contrast that to serving food at a restaurant: this is not typically thought of as a means of sending a message. Compelling someone to make a movie they don't want to make would do violence to their First Amendment rights. Compelling someone to serve food to someone they don't want to feed would not.

To be sure, all activity can be "expressive" in some sense -- for example, a bigot might say that requiring him to serve a black customer at his restaurant implicitly expresses the view that the customer is his equal and worthy of service. But the idea behind the distinction is that most people do not typically view the act of serving food at a restaurant to be expressive, and so requiring restaurants to serve customers in a non-discriminatory fashion doesn't burden speech even if it "incidentally" has certain expressive feature (like "I'm willing to serve this customer").

The court concluded that making a wedding video is an expressive activity. The videographers, in their words, use their "unique skill[s] to identify and tell compelling stories through video." "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.'" This is all quintessentially expressive in nature, and so compelling a business to effectively "editorialize" in favor of a wedding they disapprove of is a First Amendment violation -- it forces them to directly, not incidentally, express thoughts they disavow.

There's some force to this. But something about it kept nagging at me, and I was trying to nail down what it was. Here's my best stab at it:

Nobody hires a wedding photographer or videographer for the purpose of expressing their genuine views about the wedding. Their job is to make the bride and groom, and their special day, look and feel great. For all I know, our photographer showed up to our wedding and thought that the decor was tacky and that Jill and I were a disaster for each other and that the Jewishness of it all was an offense to God. But of course, he didn't express any of those views, even in his "expressive" photographs. That's not his job, and he knows it, and everyone who sees his photographs knows it too. The flip side is that, when people look at our (lovely) wedding photographs, nobody says "wow -- your wedding photographer must have really thought your wedding was beautiful" (let alone "he must have really approved of your wedding").

A wedding photographer does engage in expression -- but only partially. There are expressive elements to what our wedding photographer did, that can be directly imputed to him: the virtuosity of a shot, or the way he used lighting, for instance. But note the contrast: if I look at my wedding photos, I do impute to the photographer artistic decisions about the staging of the shot, but I don't impute to him views about the merits of the wedding itself. Photography is expressive, but in this case not comprehensively so. It is, we might say, "partially" expressive, and it seems reasonable to say that First Amendment protections only extend to the part of the expression that reasonably, not incidentally, is imputable to the author of the speech.

Compare this to the words spoken by a wedding officiant. When she delivers remarks at the altar, most listeners would reasonably take them to be an expression of her own views -- if she says "you two make a great couple", that is (with perhaps some latitude for puffery) her own expressive view on the matter. And so if she was uncomfortable speaking positive words about any particular marriage (for religious reasons or otherwise), it would be wrong to compel her to do so.

But the distinction isn't between visual and verbal or textual mediums. On the one hand, a movie (as in one shown at the theater), is fairly thought to represent the vision and expression of the directors (and actors and screenwriters, perhaps collectively) "all the way down" -- not just in terms of technical attributes like how to frame a given scene, but also in terms of the message being communicated. If a documentary filmmaker presents a given subject in a positive light, that's generally imputed to the filmmaker -- they think positively of the subject -- in a way that doesn't track for a wedding videographer.

And on the other hand, if a restaurant serves a dessert that says "happy birthday!" on it (i.e., writes a text), nobody thinks that the chef is actually doing so to express his or her substantive views on the merits of your birthday (I hate to burst anyone's bubble here). That's true even though there may well be expressive elements to the dessert that I do attribute directly to the chef. If I see a beautifully designed cake that says "happy birthday" on it, I view the chef-qua-chef as expressing his or her own message in the design far more than I do in the "happy birthday".

So it's not enough to draw an expressive versus non-expressive distinction. I agree that making a wedding video is expressive, but I disagree that (under normal circumstances) it is expressive as to the merits of the wedding. Along that dimension, the videographer's implicit "endorsement" of the same-sex wedding they film stands on identical footing to the restaurateur's implicit "endorsement" of racial equality with regard to the Black customer they serve. In both cases, it is incidental, and so in neither case should it significant weight.

Indeed, it cannot be the case that any expressive component in a business transaction sufficed to render it entirely expressive and therefore wholly insulated from regulation under the First Amendment. Even in the food service example -- which we've relied upon as our easy case -- very much can incorporate an expressive dimension, for example, in decisions on plating, interpretations of dishes, and so on. A restaurant can say, accurately, that it exercises "editorial discretion" on these matters, and so could potentially have a First Amendment difference if the state tried to regulate its "editorializing" in these domains (I say "potentially" because while a state law which seeks to declare how a veal marsala must be plated would assuredly fail under the First Amendment, one which insists that a "veal marsala" must contain veal -- "interpretation" notwithstanding -- could at least feasibly survive). But surely the expression here is confined to that domain, and it does not mean that the choice in who the restaurant serves is now expressive as well.

Put (sort of) simply, the question is not whether the conduct has any expressive character. It's whether the expressive character of the conduct is what generates the allegedly compelled speech. If it doesn't, then the fact that a given piece of expressive conduct also comes attached to an implicit endorsement of a view that speaker disapproves of is incidental, in the same way that it is incidental where the conduct is not expressive at all.

I don't pretend that I've just offered a simple, knockdown solution to one of constitutional law's thorniest dilemmas. But I do think we live in an era where wildly expansive understandings of the First Amendment are being wielded as a weapon against huge swaths of the regulatory state, and anti-discrimination law is one of the most inviting targets. We need to start thinking more carefully about limiting principles, lest virtually all discrimination become enshrined with constitutional protection.

Tuesday, August 20, 2019

How Trump and Bibi Have Changed the American-Israel Relationship Forever

There's change in the air.

The decision by the Israeli government to bar two Democratic congresswomen from Israel -- Rashida Tlaib and Ilhan Omar -- has led to unprecedented pushback against Israel by Democratic Party politicians. Even representatives thought of as pro-Israel stalwarts are furious, and they're not making any effort to hide their ire.

Some people are attributing this change to fear, or more accurately, the removal of fear. Democrats aren't "afraid" to criticize Israel anymore. They're no longer "cowering" before the all-powerful Israel Lobby.

But this misunderstands what's happening, because it misunderstands how the Israel lobby has operated in Washington.

Contrary to popular belief, the Israel lobby does not generally rely on fear and intimidation. It secured its power through many years of relationship-building, gaining trust, and establishing channels of communication. It was very rare that AIPAC or anyone else had to play "bad cop" (and in fact, AIPAC is very ineffective when it tries to take on that role). Democrats were not "silenced" on Israel -- yearning to speak out, but cowed by threat and menace. Rather, Democrats were enmeshed in a dialogic relationship with the pro-Israel community that relied upon mutuality and reciprocity; the sense that each side would listen and by listened to in turn.

And that -- decades of hard, arduous work -- has been almost entirely torpedoed over the past few years.
“There’s concern with regard to the U.S. government official involved here for politicizing his role and using his diplomatic platform to behave in a way that for the past 2 1/2  years that has been very undiplomatic,” said Halie Soifer, the director of the Jewish Democratic Council of America, who served in the Obama State Department and as a Senate foreign relations staffer.
Dermer is especially despised among Jewish Democrats and pro-Israel Democrats for what they regard as partisan disrespect for their office and their pro-Israel bona fides. Jewish Democrats in Congress, who once looked forward to attending Israeli Embassy events, now are less likely to make an appearance.
Until the 2015 Iran speech by Netanyahu, Dermer maintained civil ties with Democrats. Especially galling for Democrats was that Dermer and Netanyahu agreed to a condition of then-Speaker John Boehner, R-Ohio, that the planning be kept a secret. (Planning for the speech started in late 2014, and Boehner surprised Democrats and the pro-Israel community with his announcement of Netanyahu’s speech the day after Obama delivered the State of the Union on Jan. 20, 2015.) 
Once Dermer worked with Republicans to ambush Democrats, he was seen as partisan.
[Rep. Steny] Hoyer is especially infuriated because he extracted the commitment from Dermer to allow in Tlaib and Omar so that he could talk other lawmakers into joining a trip to Israel sponsored by the American Israel Education Foundation, an affiliate of the American Israel Public Affairs Committee. Hoyer got 41 Democrats to go, which is believed to be the highest number ever. Hoyer has led the trip for decades. 
Hoyer took the group to Israel, talked up the alliance and declared it a success before he was blindsided by the decision on Tlaib and Omar. While conservative Jewish groups hailed the decision, saying Israel was in its rights to keep out two lawmakers who support the movement to boycott Israel, pro-Israel critics said it gave ammunition to those who accuse Israel of being anti-democratic and an unreliable ally. 
Aaron Keyak, a longtime Democratic Hill staffer who is now a consultant to Jewish and liberal groups, said the anger ran deep precisely because of the trust that Jewish and pro-Israel Democrats had long placed in Israel and its governments. 
“These are friends going back decades pleading with their friends in Jerusalem and at the embassy not to let this happen,” Keyak said in an interview. “What helps sustain the U.S.-Israel friendships are the person-to-person friendships between our two governments. It was not just the overall relationship that was damaged, it was those personal relationships that were also betrayed.” 
This is the big change. It's not newfound "courage", it's not the removal of "fear". There's nothing new now that would make Democrats less "fearful"; it's not like Mossad Hit Squads went on vacation this summer. What's new is a failure of trust; the knowledge that this relationship of mutuality and reciprocity now clearly flows entirely one way. Democrats have learned, in a very real and visceral way, that all those years of dialogue, all that time invested in building a relationship, counts for absolutely nothing. The Israeli government is happy to sell them all out for .5% boost in the Knesset poll and a pat on the back from Donald Trump.

This relationship took decades to develop. The damage that's been done just this week (to say nothing of the past few years) will take at least as long to undo -- if it ever can be.