Videographers Have First Amendment Right Not to Make Same-Sex Wedding Videos

[A.] 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.” …

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.” 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. And like the creators of other types of films, such as full-length documentaries, the Larsens will exercise substantial “editorial control and judgment,” 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 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.

[B.] It also does not make any difference that the Larsens are expressing their views through a for-profit enterprise. 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.” …

[C.] 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

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