Thread by @gabrielmalor

Fed. judge rules New York photographer must photograph same-sex weddings if she wants to provide wedding photography services.

Agrees with the 10th Cir.'s troubling "unique market" narrow tailoring analysis. ag.ny.gov/sites/default/…

My criticisms of the 10th Cir. reasoning on "unique market" public accommodation law overriding the First Amendment are in a thread here:

https://twitter.com/gabrielmalor/status/1420471988448120842

Also, toss that one in the "sure wish SCOTUS hadn't punted in Masterpiece Cakeshop" pile.

The issue here, non-lawgeeks, is that to survive strict scrutiny in one of these First Amendment vs. public accommodation cases the state needs to demonstrate (1) compelling interest (2) that is narrowly tailored as applied to the plaintiff.

As a general matter, all courts agree antidiscrimination in public accommodations is a compelling interest. That's not controversial. The next part is the hard part.

The real question: Is the imposition of a nondiscrimination law on a particular business narrowly tailored if alternatives to that businesses goods and services are widely available?

The 10th Cir. in the web design case and this district court in a photographer case deny the premise: according to them, these services are unique—that's the whole point of their First Amendment challenge. They are market's of one.

The problem, as I see it though, is that this turns the First Amendment upside down.

It can't possibly be the case that the First Amendment only protects non-unique expressive goods or services. That's offensive to the very concept of free speech.

It's almost too cute a solution to an actually important problem.

The whole point here is that public accommo law collides with certain, often disfavored, First Amendment interests.

These courts are simply avoiding the problem by saying, "nuh uh, you have a unique market."