2nd Circuit rules for photographer challenging NY laws compelling speech

NEW YORK – The U.S. Court of Appeals for the 2nd Circuit ruled Friday that the case of a New York photographer and blogger may proceed and that a lower court should evaluate whether to issue an injunction to prevent New York from forcing her to create messages inconsistent with her faith in light of the U.S. Supreme Court’s landmark free speech decision in the Alliance Defending Freedom case 303 Creative v. Elenis.

ADF attorneys filed a supplemental brief with the 2nd Circuit last July explaining how 303 Creative protected photographer and blogger Emilee Carpenter. The brief argued that the appeals court should affirm Carpenter’s First Amendment rights, reverse a lower court’s ruling dismissing her case, and prevent officials from forcing Carpenter to create photographs and blogs inconsistent with her beliefs.

“Free speech is for everyone. As the Supreme Court reaffirmed in 303 Creative, the government can’t force Americans to say things they don’t believe,” said ADF Legal Counsel Bryan Neihart. “The U.S. Constitution protects Emilee’s freedom to express her own views as she continues to serve clients of all backgrounds and beliefs. We urge the district court to uphold this freedom and follow Supreme Court precedent so that Emilee can speak and create consistent with her convictions. That freedom protects Emilee and all Americans regardless of their views.”

New York’s laws threaten Carpenter with fines of up to $100,000, a revoked business license, and up to a year in jail.

“[T]he specific facts alleged in Carpenter’s complaint are substantially similar to the relevant facts stipulated to by the parties in 303 Creative,” the 2nd Circuit wrote in its decision in Emilee Carpenter Photography v. James. “Carpenter has alleged that she exercises artistic license to create customized and original images that express her religious views about marriage…her photography services plausibly qualify as expressive activity under the Court’s holding.”

Carpenter’s case is similar to 303 Creative, which involved Colorado graphic artist and website designer Lorie Smith. Smith challenged a state law that forced her to express messages that violated her beliefs. The Supreme Court concluded that the state of Colorado could not compel Smith to create content that contradicted her views on marriage. The Supreme Court reaffirmed the bedrock First Amendment principle that the government may not “seek[] to force an individual to speak in ways that alight with [the government’s] views but defy her conscience about a matter of public significance.”

• Pronunciation guide: Neihart (NYE'-hart)

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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