New York Is Violating Photographer’s Free Speech
The First Amendment guarantees all Americans the freedom to choose what to say and what not to say. But in recent years, state and local governments have threatened this freedom by misinterpreting laws known as public-accommodation laws to target constitutionally protected speech.
Attorneys for Alliance Defending Freedom are currently litigating one of those cases—303 Creative v. Elenis—before the Supreme Court of the United States.
But these threats to freedom are occurring all over the country. For example, New York state officials are misusing public-accommodation laws to compel Emilee Carpenter to create photographs and write blog posts celebrating a view of marriage that she believes to be false. They say if she doesn’t, she violates the law.
But that’s exactly wrong. The truth is that Emilee considers the what and not the who when she creates photographs. She happily serves everyone; she simply cannot promote every message. The First Amendment ensures that Emilee can decline to express messages that contradict her beliefs.
Who is Emilee Carpenter?
Emilee Carpenter is a Christian artist who tells stories through her photographs and blogs. She began her journey as a photographer in high school, and she first started working professionally in 2012.
After a brief stint in the corporate world, Emilee founded her own photography studio, Emilee Carpenter Photography, to pursue her creative passions and to celebrate messages consistent with her beliefs. One of those core beliefs is that marriage is the union of one man and one woman. And while Emilee happily serves everyone, she cannot create photographs celebrating a view of marriage that contradicts this belief, no matter who asks.
But Emilee read news reports about other photographers and business owners in New York and elsewhere who were being sued and threatened with severe penalties for declining to celebrate or participate in same-sex weddings. She then learned about New York’s laws and realized they threaten her ability to operate her business according to her faith.
To protect her freedom to promote views about marriage consistent with her faith, Emilee filed a lawsuit challenging New York’s laws in April 2021.
Emilee Carpenter Photography v. James
New York’s public-accommodation laws force Emilee to promote views of marriage that violate her religious beliefs. The law puts Emilee to an impossible choice: violate her beliefs, violate the law, or shut down her studio.
New York says Emilee violates its laws if she continues to only photograph weddings consistent with her beliefs about marriage or publicizes those beliefs. And the penalties are staggering. Under the laws, Emilee could be forced to pay limitless damages and $100,000 fines. She also risks jailtime and having her business license revoked.
This compulsion violates the First Amendment, which protects Emilee’s freedom to choose the messages she celebrates through her photography and blogs.
A federal district court dismissed Emilee’s case in December 2021. The court assumed Emilee served everyone, that Emilee’s photographs are speech, and that New York’s laws compelled Emilee to promote a view of marriage that violated her beliefs. Even so, the court held that New York could compel Emilee’s speech. That ruling violates the First Amendment.
So ADF attorneys appealed to the U.S. Court of Appeals for the 2nd Circuit. Oral arguments before the 2nd Circuit took place in September 2022, and Emilee is currently awaiting the court’s decision.
What’s at stake?
The First Amendment guarantees to all Americans—including artists—the freedom to choose which messages to express. If the government can compel Emilee to convey a view of marriage that cuts against her beliefs, it can compel the speech of others.
That’s what’s at stake in 303 Creative v. Elenis too. There, Colorado state officials are misusing a public-accommodation law to compel website designer and graphic artist Lorie Smith to create custom websites that express messages contrary to her core beliefs about marriage.
But a victory for Emilee and Lorie wouldn’t be just a win for them. The same protections that ensure they can promote messages consistent with their beliefs ensure that a lesbian cake artist can decline to create a custom cake criticizing same-sex marriage and that a Democratic print shop owner can decline to design posters for Republican politicians.
- April 2021: ADF attorneys filed a lawsuit on behalf of Emilee Carpenter and her photography studio challenging New York’s laws that forced her to photograph and blog about same-sex weddings because she does so for weddings between one man and one woman.
- December 2021: A federal district court dismissed Emilee’s case.
- January 2022: ADF attorneys appealed the decision to the U.S. Court of Appeals for the 2nd Circuit.
- September 2022: ADF attorneys delivered oral argument at the 2nd Circuit and explained that the federal district court’s decision should be reversed.
- Currently: Emilee is awaiting the circuit court’s decision.
The bottom line
A win for Emilee is a win for everybody. No one should be forced to say something they don’t believe. Every American should be free to express ideas even if the government disagrees with those ideas.
ADF team members contributed to the writing and publication of this article.