22-75 Carpenter v. James

United States Court of Appeals For the Second Circuit

August Term 2022

Argued: September 28, 2022 Decided: July 12, 2024

No. 22-75

EMILEE CARPENTER, LLC, DBA EMILEE CARPENTER PHOTOGRAPHY, EMILEE CARPENTER,

Plaintiffs-Appellants,

v.

LETITIA JAMES, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF NEW YORK, MARIA L. IMPERIAL, IN HER OFFICIAL CAPACITY AS THE ACTING COMMISSIONER OF THE NEW YORK STATE DIVISION OF HUMAN RIGHTS, WEEDON WETMORE, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF CHEMUNG COUNTY,

Defendants-Appellees. *

Appeal from the United States District Court for the Western District of New York No. 21-cv-6303, Frank P. Geraci, Judge.

* The Clerk of Court is respectfully directed to amend the captions accordingly. Before: CARNEY, BIANCO, and NATHAN, Circuit Judges.

Plaintiff Emilee Carpenter is a wedding photographer who offers her services to the general public. Her complaint alleges that she wishes to create photography that reflects her religious and personal beliefs about marriage, including by declining to offer her services for same-sex weddings. She brought this preenforcement action alleging that New York’s public accommodations laws prohibiting discrimination on the basis of sexual orientation violate the First and Fourteenth Amendments. Carpenter sought declaratory and injunctive relief, and requested a preliminary injunction against enforcement of the laws. The United States District Court for the Western District of New York (Geraci, J.) dismissed all of her claims. Following the Supreme Court’s decision in 303 Creative LLC v. Elenis,

(2023), State and County Defendants concede and we agree that Carpenter has met her burden at the pleading stage to state a plausible free speech claim. However, we reject Carpenter’s request to enter a preliminary injunction at this stage. We also affirm the district court’s dismissal of Carpenter’s other claims. Carpenter has failed to sufficiently plead that the public accommodations laws violate her right to free association, her right to free exercise of religion, or the Establishment Clause. She has also failed to state a plausible claim that the laws are unconstitutionally overbroad or vague. Accordingly, we AFFIRM in part, REVERSE in part, VACATE in part, and REMAND for further proceedings. ________

BRYAN D. NEIHART (John J. Bursch, Jonathan A. Scruggs, Jacob P. Warner, on the brief), Alliance Defending Freedom, Washington, DC, for Plaintiffs-Appellants.

Raymond J. Dague, Dague & Martin, P.C., Syracuse, NY, for Plaintiffs-Appellants.

JEFFREY W. LANG (Barbara D. Underwood, Alexandria Twinem, on the brief) for Letitia James, Attorney General, State of New York,

2 Albany, NY, for Defendants-Appellees Letitia James and Maria L. Imperial.

M. HYDER HUSSAIN, County of Chemung Department of Law, Elmira, NY, for Defendant-Appellee Weeden Wetmore. ________

NATHAN, Circuit Judge:

Like many states, New York has long had public accommodations laws to

guarantee equal access to goods and services for members of protected classes.

These laws are codified in New York’s Human Rights Law and Civil Rights Law,

which, among other things, make it an unlawful discriminatory practice for public

establishments to refuse service to individuals because of protected characteristics

including race, religion, sex, and sexual orientation. See

(2)(a);

-c(2). With the protection of these laws, a same-sex couple

can live and travel throughout New York State knowing that they will not be

denied service at a restaurant, a room at an inn, or myriad other goods and services

because of who they are.

This case arose when Plaintiff Emilee Carpenter brought a preenforcement

challenge against New York’s public accommodations laws on grounds that they

3 are unconstitutional under the First and Fourteenth Amendments as applied to

her business. Specifically, the complaint alleges that New York’s laws violate

Carpenter’s constitutional rights to free speech, free association, and free exercise

of religion, violate the Establishment Clause, and are unconstitutionally overbroad

or vague. Carpenter’s complaint alleges that she is a wedding photographer who

wishes to provide her services consistent with her beliefs about marriage. Because

one of those beliefs is that marriage should be only between a man and a woman,

she intends to refuse her photography services to same-sex couples. Concerned

that this course of conduct would violate New York’s public accommodations laws

prohibiting discrimination on the basis of sexual orientation, she brought this

preenforcement suit. The district court dismissed all of Carpenter’s claims.

On appeal, Carpenter challenges each dismissal and seeks an order

directing the district court to enter a preliminary injunction. We affirm the district

court’s dismissal of Carpenter’s claims that New York’s public accommodations

laws (1) violate her First Amendment right to free association, (2) violate her First

4 Amendment right to free exercise of religion, (3) violate the Establishment Clause,

(4) are unconstitutionally vague, or (5) are overbroad.

As to the free speech claim, State and County Defendants concede that the

case must be remanded in light of the Supreme Court’s recent decision in 303

Creative LLC v. Elenis,

(2023). We agree. However, in light of the

Supreme Court’s analysis in 303 Creative and relevant First Amendment law, we

deny Carpenter’s request to enter a preliminary injunction at this stage. Instead,

we remand to allow the district court to consider the preliminary injunction

request in the first instance. In assessing that request, the district court must

evaluate a developed factual record—rather than merely the complaint’s

allegations—to determine whether the application of the law at issue actually

compels Carpenter’s expressive conduct, rather than nonexpressive conduct that

imposes an incidental burden on speech. And the district court should assess

whether Carpenter’s blogging is a good or service regulated by New York’s public

accommodations laws.

5 Accordingly, we REVERSE in part, VACATE in part, and AFFIRM in part

the judgment of the district court, and REMAND for further proceedings.

BACKGROUND

I. Factual Allegations

The current posture of the case is review of the grant of a motion to dismiss,

so the factual allegations are taken from Plaintiff’s complaint and any incorporated

documents, and they are assumed to be true at this stage. See Absolute Activist

Value Master Fund Ltd. v. Ficeto,

(2d Cir. 2012). Plaintiff Emilee

Carpenter is a photographer from Chemung County, New York, who provides

engagement and wedding photography services to the general public through her

limited liability company Emilee Carpenter, LLC. As explained in more detail

below, Carpenter alleges that the wedding photographs she creates for her

customers are customized expressions of her own artistic vision. Carpenter runs

a website as part of her business, on which she advertises her services and displays

her work. She also publishes a blog on her website, which includes posts about

the engagements and weddings she photographs. As the district court noted, it is

6 unclear whether these blog posts are part of the photography service that

Carpenter offers to the general public. See Emilee Carpenter, LLC v. James,

, 372 n.10 (W.D.N.Y. 2021) (observing that Carpenter’s complaint at

times describes the blog as a form of her own marketing for her business). As we

explain below, the precise nature and the status of Carpenter’s blogging remain

factual questions for the district court to evaluate in the first instance based on a

more developed record. Carpenter’s allegations regarding the blog do not alter

our resolution of the appeal at this stage and so we need not examine them further

here.

Carpenter’s complaint alleges that she seeks to conduct her photography

business consistent with her religious faith and her own beliefs about marriage.

To that end, she requires all engagement and wedding clients to sign a service

agreement giving her full artistic license and editorial discretion over their

photographs. One of Carpenter’s beliefs is that marriage should be only between

a man and a woman. She alleges that she therefore will not provide her

photography services for same-sex weddings or engagements, as she thinks doing

7 so would express acceptance and celebration of same-sex marriage contrary to her

beliefs. Carpenter claims she will provide other photography services to the

individuals whose weddings she will not photograph—such as “branding

photographs for a business owned and operated by LGBT individuals”—but she

will not provide her wedding-photography service to same-sex couples. App’x at

37.

According to the complaint, Carpenter currently silently screens

prospective clients for same-sex couples, ignoring requests for engagement and

wedding photography from couples who appear to be the same sex. Carpenter

intends to continue refusing to photograph same-sex couples’ engagements and

weddings. Further, she wishes to amend her company’s operating agreement to

include a “Beliefs and Practices” statement explaining this practice, to advertise

on her website that she will not provide engagement or wedding photography to

same-sex couples because of her religious and personal beliefs, and to ask

prospective clients directly whether they are a same-sex couple so that she can

decline their request if they are. See App’x at 51.

8 Carpenter understands that running her business in this way would be

contrary to state law. Like many states, New York has long had public

accommodations laws guaranteeing equal access to goods and services on the

basis of certain protected grounds. Drawing on the common-law tradition that

those who offer their services to the general public must serve all comers, states

and localities began passing these laws after the Civil War out of a concern that

discrimination in public accommodations would “perpetuate a caste system in the

United States.” Bell v. Maryland,

(1964) (Goldberg, J., concurring);

see Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,

(1995) (noting the “venerable” common-law history of public accommodations

laws).

Today, New York’s public accommodations laws are codified in the state’s

Human Rights Law and Civil Rights Law. Three provisions of the Human Rights

Law are at issue in this case. First, the Accommodations Clause makes it an

“unlawful discriminatory practice” for the provider of a “place of public

accommodation, resort or amusement . . . to refuse, withhold from or deny to” an

9 individual “any of the accommodations, advantages, facilities or privileges

thereof” on the basis of a number of protected characteristics including race,

religion, sex, and sexual orientation.

(2)(a). Second, the

Denial Clause makes it similarly unlawful for providers of public accommodations

“to publish, circulate, issue, display, post or mail any written or printed

communication, notice or advertisement” to the effect that the public

accommodation will be refused to an individual on those same grounds.

Third,

the Unwelcome Clause prohibits communications, notices, or advertisements to

the effect that an individual’s “patronage or custom” at a place of public

accommodation is “unwelcome, objectionable or not acceptable, desired or

solicited” on the same protected grounds.

Separately, the Civil Rights Law provides that “[n]o person shall . . . be

subjected to any discrimination in his or her civil rights, or to any harassment . . .

in the exercise thereof, by any other person or by any firm, corporation or

institution, or by the state or any agency or subdivision of the state” on the basis

of protected grounds including (again) sexual orientation.

-

10 c(2). The parties agree that the Civil Rights Law’s protections against

discrimination by public accommodations are coextensive with those of the

Human Rights Law. The parties also agree that Carpenter’s photography business

is a public accommodation under New York law. Indeed, while excluding any

institution that is “in its nature distinctly private,” New York law defines “place

of accommodation, resort or amusement” broadly to include “establishments

dealing with goods or services of any kind.”

(9).

These laws can be enforced in a number of ways. Any person aggrieved by

discrimination may file a complaint with New York’s Division of Human Rights,

as may certain state officials including the Attorney General.

(1). The Division may also initiate a complaint itself.

The Division

investigates complaints and has the authority to order various remedies such as

cease-and-desist orders, compensatory damages, and fines when it finds, after a

hearing, that discrimination has occurred.

§ 297(4)(c). Willful violation of an

order from the Division of Human Rights is a misdemeanor, which can result in

criminal prosecution. Id. §§ 63(10), 299. So too is a violation of the Civil Rights

11 Law. Id. § 63(10);

-d. Finally, someone who has

experienced discrimination has a cause of action to sue the provider of the public

accommodation directly for violations of the Human Rights Law or the Civil

Rights Law.

(9);

-d.

II. Procedural History

Carpenter sued state and county officials in the Western District of New

York in April 2021, alleging that New York’s public accommodations laws violate

her First Amendment rights to free speech, free association, and free exercise of

religion; violate the Establishment Clause; and are unconstitutionally vague and

overbroad. Carpenter sought injunctive and declaratory relief, and also moved

for a preliminary injunction.

The County Defendant moved to dismiss Carpenter’s complaint for lack of

standing, while the State Defendants moved to dismiss for lack of standing and

failure to state a claim. The district court denied the motions to dismiss for lack of

standing, concluding that Carpenter faced a credible threat of having New York’s

laws enforced against her. See Carpenter, 575 F. Supp. 3d at 365-70. Defendants do

12 not contest this holding on appeal. However, the court dismissed Carpenter’s

complaint for failure to state a claim and denied her request for a preliminary

injunction as moot. See id. at 370-86. Carpenter timely filed the present appeal.

After oral argument, we held consideration of this case in abeyance pending the

Supreme Court’s issuance of its decision in 303 Creative LLC v. Elenis,

(2023). With that decision issued, we now resolve this appeal.

DISCUSSION

We review de novo a district court’s dismissal for failure to state a claim,

accepting as true all factual allegations in the complaint and drawing all

reasonable inferences in the plaintiff’s favor. See Tongue v. Sanofi,

(2d Cir. 2016). In order to survive a motion to dismiss, a plaintiff must plead

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly,

(2007). That requires “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal,

(2009).

13 As an initial matter, before reaching the merits of Carpenter’s claims, we

agree with the district court—and Defendants, on appeal—that Carpenter has

plausibly alleged an injury in fact for the purpose of standing. We note, however,

that it will be her obligation to continue to demonstrate standing “with the manner

and degree of evidence required at the successive stages of the litigation.”

TransUnion LLC v. Ramirez,

(2021) (quoting Lujan v. Defs. of

Wildlife,

(1992)); see also Gill v. Whitford,

(2018) (“The

facts necessary to establish standing, however, must not only be alleged at the

pleading stage, but also proved at trial.”). Our conclusion here is premised on

assuming the truth of Carpenter’s factual allegations as pled in her complaint. But

this conclusion would have little bearing on the question of standing if a more

developed factual record should cast doubt on whether Carpenter faces a credible

threat of enforcement of New York’s laws.

I. Free Speech Claim

Carpenter principally argues that New York’s public accommodations laws

violate her First Amendment right of free speech on the theory that the laws

14 compel speech. The district court rejected Carpenter’s free speech claims, finding

that even assuming strict scrutiny applies, the Accommodations Clause is

narrowly tailored to advance the state’s compelling interest in eliminating

discrimination based on sexual orientation in the provision of public

accommodations. See Carpenter, 575 F. Supp. 3d at 370-80. The district court

further upheld the Denial and Unwelcome Clauses, reasoning that a state may

prohibit speech that promotes unlawful activity, including discrimination. See id.

at 380. Because the court dismissed Carpenter’s complaint for failure to state a

claim, it also denied her request for a preliminary injunction as moot. See id. at

365.

Since the district court’s ruling, the Supreme Court issued its decision in 303

Creative LLC v. Elenis,

(2023). Carpenter argues now, and State and

County Defendants concede, that this claim must be remanded to the district court

in light of the Supreme Court’s decision. Carpenter further argues that 303 Creative

warrants vacating the district court’s denial of a preliminary injunction and

directing entry of an injunction on remand. For the reasons that follow, we agree

15 that Carpenter’s free speech claim must be remanded to the district court, but we

decline Carpenter’s invitation to direct entry of a preliminary injunction. Instead,

on remand, the district court should consider the application for preliminary

injunctive relief on a developed factual record.

A. Dismissal for Failure to State a Claim

Following 303 Creative, we conclude (as the Defendants also concede) that

Carpenter has pled sufficient facts to plausibly allege a free speech claim. 303

Creative concerned a graphic designer, Lorie Smith, who offered website design

services through her business, 303 Creative LLC. Smith planned to create wedding

websites but asserted faith- and free-speech-based objections to creating wedding

websites for same-sex couples. Smith stated a fear that her refusal to offer her

services for same-sex weddings would violate Colorado’s Anti-Discrimination Act

(CADA) which, much like New York’s laws here, prohibits a public

accommodation from denying “the full and equal enjoyment” of its goods and

services to any customer based on a number of protected categories including

sexual orientation. 303 Creative,

. Smith brought a

16 preenforcement First Amendment challenge alleging that she faced a credible

threat that Colorado would enforce CADA to compel her to create websites

celebrating marriages she does not endorse—namely, same-sex weddings. See

.

The Supreme Court held that, as applied to Smith’s website design business,

Colorado’s public accommodations law violated the First Amendment because it

impermissibly compelled speech.

. The Court took three steps to reach

that conclusion: First, the Court acknowledged the credible threat that Colorado

would invoke CADA to compel Smith to create wedding websites that she did not

wish to create.

. Second, it determined that “the wedding websites Ms.

Smith seeks to create qualify as ‘pure speech’” under the First Amendment.

. And third, the Court concluded that “the wedding websites Ms. Smith seeks

to create involve her speech.”

. Having drawn these three conclusions,

the Court reasoned that CADA could not constitutionally be applied to Smith’s

wedding website business, because the First Amendment prohibits Colorado from

compelling persons like Smith to engage in pure speech. See

(stating that

17 public accommodations laws cannot be “applied to expressive activity to compel

speech” (internal quotation marks omitted)).

Relevant here, the Supreme Court declared that the parties did not contest

the first premise in its chain of logic (the threat of compulsion). It then ruled that

the other two premises—that the websites Smith would be compelled to create (1)

qualify as “pure speech” that (2) involve her speech—followed directly from the

parties’ factual stipulations. First, the Court said its conclusion as to “pure speech”

followed from the following stipulations: “that Ms. Smith’s websites promise to

contain images, words, symbols, and other modes of expression,” “that every

website will be her original, customized creation,” and “that Ms. Smith will create

these websites to communicate ideas—namely, to celebrate and promote the

couple’s wedding and unique love story and to celebrate and promote what Ms.

Smith understands to be a true marriage.”

(cleaned up).

The Court next accepted the premise that the wedding websites at issue

involved Smith’s speech. “Again,” the Court said, “the parties’ stipulations lead

the way to that conclusion.”

. This time, the Court referred to the parties’

18 stipulations that “Ms. Smith intends to vet each prospective project to determine

whether it is one she is willing to endorse,” “consult with clients to discuss their

unique stories as source material,” and in the end “produce a final story for each

couple using her own words and her own original artwork,” which will be

presented together with the name of her solely owned company.

(cleaned up);

.

As Carpenter and State and County Defendants agree, the Supreme Court’s

reliance on these factual stipulations is dispositive here. That is because the

specific facts alleged in Carpenter’s complaint are substantially similar to the

relevant facts stipulated to by the parties in 303 Creative. Specifically, Carpenter

has alleged that she exercises artistic license to create customized and original

images that express her religious views about marriage. Carpenter has thus

alleged substantially similar facts to suggest that her photography services

plausibly qualify as expressive activity under the Court’s holding, see App’x at 26-

32. In light of these factual allegations, Carpenter has plausibly stated a compelled

19 speech claim because the Accommodations Clause of New York’s Human Rights

Law requires her to extend her photography services to same-sex weddings. 1

We accordingly reverse the district court’s grant of the motion to dismiss

that claim.

B. Preliminary Injunction Request

Although we agree that Carpenter has plausibly stated a valid free speech

claim, we reject Carpenter’s argument that 303 Creative “proves that Emilee

deserves injunctive relief for her free-speech claim now.” Appellant’s Letter Br. at

1 (emphasis added). Instead, we remand to the district court to consider the

application for preliminary injunctive relief on a developed factual record.

“We review the denial of a motion for a preliminary injunction for abuse of

discretion, which we will identify only if the decision rests on an error of law or a

1It follows directly from Carpenter’s plausible claim regarding the Accommodations Clause that she has also stated a plausible free speech claim against the Denial and Unwelcome Clauses. As in 303 Creative, where the Court acknowledged that Smith’s “Communication Clause challenge hinges on her Accommodation Clause challenge,”

, here Carpenter’s challenge to the Denial and Unwelcome Clauses rises and falls with her challenge to the Accommodation Clause. If Carpenter’s refusal to serve same-sex weddings is protected expressive activity, then the Denial and Unwelcome Clauses—which prevent Carpenter from advertising that position to the public—regulate protected speech.

20 clearly erroneous finding of fact, or cannot be located within the range of

permissible decisions.” New Hope Fam. Servs., Inc. v. Poole,

(2d

Cir. 2020). “The district court’s denial of [Carpenter’s] preliminary injunction

motion as moot rests on an error of law, specifically, the court’s dismissal of all

[Carpenter’s] claims.”

For the reasons stated in the preceding discussion,

Carpenter’s free speech claim should not have been dismissed and, thus, the

preliminary injunction motion is not moot.

Carpenter urges this Court not only to vacate the denial of its preliminary

injunction motion, but also to direct entry of the requested injunction on remand.

We recognize our authority to do so, see

but decline in the instant case because

Carpenter’s request for a preliminary injunction at this stage rests on a misreading

of 303 Creative and further development of the factual record on remand is

warranted before entry of a preliminary injunction.

The Supreme Court’s decision in 303 Creative justifies remand for resolution

of the preliminary injunction for two reasons. First, the Court in 303 Creative was

clear that its holding was tied to the factual stipulations reached in that case. And

21 for good reason. In cases like these, “details might make a difference.” Masterpiece

Cakeshop, Ltd. v. Colorado C.R. Comm’n,

, 624 (2018). To make the

limited reach of its holding clear, the 303 Creative Court acknowledged that

“[d]oubtless, determining what qualifies as expressive activity protected by the

First Amendment can sometimes raise difficult questions.” 303 Creative,

. “But this case presents no complication of that kind,” the Court stressed,

because “[t]he parties have stipulated that Ms. Smith seeks to engage in expressive

activity.”

(emphasis in original).

Directly relevant to the facts of this case, the majority in 303 Creative rebuffed

the dissent’s suggestion that the Court’s holding would allow a professional

photographer who takes photos of newlyweds to “refuse to sell that service to a

newlywed gay or lesbian couple, even if she believes the couple is not, in fact, just

married because in her view their marriage is false.”

(Sotomayor, J.,

dissenting) (internal quotation marks omitted). The majority clarified: “Instead of

addressing the parties’ stipulations about the case actually before us, the dissent

spends much of its time adrift on a sea of hypotheticals about photographers,

22 stationers, and others, asking if they too provide expressive services covered by

the First Amendment.”

(emphasis added). “But those cases are not this

case.”

The Court could not have been clearer that the facts matter.

For that reason, the district court must be given the opportunity to consider

a developed and specific factual record regarding Carpenter’s business and

determine whether, if applied here, New York’s public accommodations laws will

compel Carpenter’s expressive activity as contemplated by 303 Creative.

Second, and relatedly, 303 Creative must be read in light of familiar First

Amendment principles that confirm the fact-intensive nature of the inquiry at

hand. These principles, as well, compel us to reject Carpenter’s request that we

direct entry of the preliminary injunction at this stage in the litigation.

303 Creative reminds us first that the First Amendment extends its protection

to certain forms of expression even when the speaker is engaged in commerce. See

. This breaks no new ground. Indeed, long before 303 Creative, “[i]t [was]

well settled that a speaker’s rights are not lost merely because compensation is

23 received; a speaker is no less a speaker because he or she is paid to speak.” Riley

v. Nat’l Fed’n of the Blind of N.C., Inc.,

(1988).

Instead, the preliminary question in a case asserting unlawfully compelled

speech is whether the law at issue regulates “nonexpressive conduct” of a

commercial nature—perhaps with an “incidental burden[] on speech,” Sorrell v.

IMS Health Inc.,

(2011)—or whether the law as applied compels

what the Court in 303 Creative called “pure speech” or “expressive activity,” 303

Creative,

; see also Masterpiece Cakeshop, 584 U.S. at 631 (“[I]t is a

general rule that such objections [to same-sex marriage] do not allow business

owners and other actors in the economy and in society to deny protected persons

equal access to goods and services under a neutral and generally applicable public

accommodations law.”).

In 303 Creative, the Court rejected Colorado’s argument that the “case

involves only the sale of an ordinary commercial product and any burden on Ms.

Smith’s speech is purely incidental.” 303 Creative,

(internal

quotation marks omitted). Instead, as the majority explained, “the State has

24 stipulated that Ms. Smith does not seek to sell an ordinary commercial good but

intends to create customized and tailored speech for each couple.”

(internal

quotation marks omitted). Here too, before entering or denying a preliminary

injunction, the district court on remand should consider whether the factual record

ultimately establishes, contrary to Carpenter’s allegations, that her photography

services involve only the sale of ordinary commercial services, i.e., nonexpressive

conduct—or if it indeed supports her claim that the services constitute expressive

conduct.

Along these lines, 303 Creative also reiterates the familiar First Amendment

principle that conduct cannot be labeled expressive activity simply “whenever the

person engaging in the conduct intends thereby to express an idea.” Rumsfeld v. F.

for Acad. & Institutional Rts., Inc.,

(2006) (“FAIR”) (internal

quotation marks omitted); see also Hishon v. King & Spalding,

(1984)

(holding that the right of expression does not permit selecting law firm partners in

violation of Title VII). Instead, courts must consider whether the good or service

at issue amounts to a “medium for the communication of ideas.” Joseph Burstyn,

25 Inc. v. Wilson,

(1952) (extending First Amendment protection to

films because they are a “significant medium for the communication of ideas”); see

also Brown v. Ent. Merchants Ass’n,

(2011) (same with respect to

video games). Thus, in Hurley, the Court concluded that First Amendment

protection extends to parades because parades are “mediums of expression,” and

not simply “group[s] of people . . . march[ing] from here to there.”

-

69. Importantly, the Court noted that “we use the word ‘parade’ to indicate

marchers who are making some sort of collective point, not just to each other but

to bystanders along the way,” and indeed parades “depend[] on watchers.”

; compare with FAIR,

(“Unlike a parade organizer’s choice of

parade contingents, a law school’s decision to allow recruiters on campus is not

inherently expressive.”).

The question posed here, then, is whether Carpenter’s photography services

are expressive conduct, because, for example, her photographs provide conduits

of public discourse or “communicate ideas.” Brown,

; see also Wilson,

(describing protected mediums of expression as “organ[s] of public

26 opinion” that “may affect public attitudes and behavior in a variety of ways,

ranging from direct espousal of a political or social doctrine to the subtle shaping

of thought which characterizes all artistic expression”). Even if photography is

“presumptively expressive,” Mastrovincenzo v. City of New York,

(2d

Cir. 2006), some photography services may be so devoid of expressive content as

to fall outside the category of expressive conduct, cf. Telescope Media Grp. v. Lucero,

(8th Cir. 2019) (concluding that certain videos were protected

speech where complaint alleged that videos were “not just . . . simply recordings,

the product of planting a video camera at the end of the aisle and pressing

record”). In the absence of such a stipulation, the district court must decide on

remand which category Carpenter’s photography falls into: expressive or not.

That is essentially the question the Supreme Court answered in 303 Creative

when it determined that Smith’s wedding websites were expressive or “pure

speech.” The factual stipulations confirmed that Smith was not merely selling off-

the-shelf commercial products. Instead, she was creating original, tailored, and

expressive works that all parties agreed communicated Smith’s particular

27 personal views. As the Court put it, Smith’s websites constituted “modes of

expression” and were designed to communicate Smith’s ideas about what

constitutes a “true marriage.” 303 Creative,

. Put otherwise, the

parties had all but agreed that Smith was an artist and that her websites were her

artistic mediums of expression. But here, whether Carpenter’s actual wedding

photography services constitute expressive conduct is an open threshold question

for the district court to consider on remand in light of a developed evidentiary

record.

Finally, the Court’s requirement in 303 Creative that the websites involve

Smith’s speech also returns us to familiar First Amendment principles. See

(concluding that “the wedding websites Ms. Smith seeks to create involve her

speech”). To state a compelled speech claim, it is not enough for a plaintiff to show

that the service at issue involves a medium of expression. The plaintiff must also

demonstrate that the expressive activity is her own – that is, she created the

expressive content herself or, by compiling or curating third-party content in some

forum, she is also engaged in her own expressive activity. See Moody v. NetChoice,

28 LLC, -- S. Ct. --,

, at *10 (2024) (explaining that, in determining

whether “ordering a party to provide a forum for someone else’s views implicates

the First Amendment,” the Court has “repeatedly held that it does so if, though

only if, the regulated party is engaged in its own expressive activity, which the

mandated access would alter or disrupt,” and that expressive activity may include

“presenting a curated compilation of speech originally created by others”). In the

absence of such a showing, the plaintiff’s autonomy is not implicated and does not

trigger First Amendment protection.

The Supreme Court spelled out this principle in Hurley. There, the Court

considered whether an entity who is organizing or compiling expressive content

created by one or more third parties is engaged in its own expressive activity that

is also protected by the First Amendment. In particular, after concluding that

parades are mediums of expression, the Court turned next to the question of whose

expression was involved. It elaborated that “in the context of an expressive

parade, as with a protest march, the parade’s overall message is distilled from the

individual presentations along the way, and each unit’s expression is perceived by

29 spectators as part of the whole.”

. As a result, the Court rejected

the argument that compelled admission of certain participants in “the parade

would not threaten the core principle of speaker's autonomy” because, it

explained, public spectators were “likely [to] perceive[]” the inclusion of a unit “as

having resulted from” the organizer’s belief that the unit’s message was “worthy

of presentation and . . . support.”

. In other words, the Court concluded

that it was indeed the organizer’s speech that would be compelled. The Supreme

Court in Hurley thus held that “the speaker’s right to autonomy over the message

is compromised” when “dissemination of a view contrary to one’s own is forced

upon a speaker intimately connected with the communication advanced[.]”

(emphasis added). 2

Here, to the extent Carpenter is using her photographs or website to host

the expressive content of third parties (such as the wedding couple who hired her),

rather than her own, the district court must determine, as articulated in Hurley and

2 Cf. Wooley v. Maynard,

, 717 n.15, 715 (1977) (holding unconstitutional a law requiring

motorists to display the state motto on license plates given that a vehicle “is readily associated with its operator” and thus the law requires drivers to “use their private property as a ‘mobile billboard’ for the State’s ideological message” (emphasis added)).

30 303 Creative, whether the law compels Carpenter’s own speech. In making this

determination, a court might consider whether the public accommodations law

compels Carpenter to “‘alter the expressive content’” of her photographs,

at 585

(quoting Hurley, 515 U.S. at 572–73), or “affect their message,”

at 589 (quoting

Hurley,

) (alterations adopted), whether it “‘interfere[s] with [her]

choice not to propound a point of view contrary to [her] beliefs,’”

(emphasis

added) (quoting Boy Scouts of America v. Dale,

(2000)), and whether

it “forc[es] . . . [her] to include other ideas within [her] own speech that [she]

would prefer not to include,”

Carpenter insists that “303 Creative also shows that Emilee deserves

injunctive relief . . . because the parties had their chance to develop the record

below, no one disputes a relevant fact, . . . and 303 Creative shows that compelling

speech is per se invalid.” Appellant’s Letter Br. at 14. To the contrary, 303 Creative

makes clear that the district court must be given the opportunity to consider a

more fully developed factual record. This is especially so because Carpenter’s

statement that “no one disputes a relevant fact” is incorrect. Here, unlike in 303

31 Creative, the State did not agree to factual stipulations in the district court

demonstrating that all of the content at issue on Carpenter’s website is her own

expressive activity. 3 In light of the Supreme Court’s decision in 303 Creative and

relevant First Amendment precedent, the State should have an opportunity to

present evidence with respect to any factual disputes that will be material to that

analysis.

Beyond any factual disputes raised with respect to Carpenter’s alleged

expressive activities in her photography and photography-related services, the

district court should also consider the nature of the speech on Carpenter’s

company blog in light of a more developed record. Specifically, the court should

assess whether Carpenter’s blogging is more akin to, for instance, advertisement

than to a service Carpenter offers to the general public, which her customers

3 As previously discussed, the Supreme Court in 303 Creative cited several factual stipulations

that, put together, satisfied this requirement. These included that fact that “Ms. Smith intends to vet each prospective project to determine whether it is one she is willing to endorse,” “consult with clients to discuss their unique stories as source material,” and in the end “produce a final story for each couple using her own words and her own original artwork,” which will be presented together with the name of her solely owned company. 303 Creative,

(cleaned up);

.

32 purchase from her—in other words, whether Carpenter’s blogging is a good or

service regulated by New York’s public accommodations laws.

Accordingly, we reject Carpenter’s request that we direct entry of the

preliminary injunction at this stage of the litigation. 4

All in all, we have no doubt that “determining what qualifies as expressive

activity protected by the First Amendment can sometimes raise difficult

questions.” 303 Creative,

. The inquiry is made all the more difficult

by the fact that all of life’s activities are, in some fashion, expressive. Weddings—

including same-sex weddings—involve many goods and services that vendors

could attempt to declare expressive: catering, flower arrangements, invitations,

live music, table settings, lighting, tailoring, and so on. But the fact that some good

or service can implicate expression is a different matter entirely from whether it

4We additionally note that, should the district court determine that any injunctive relief in this case is appropriate (whether preliminary or otherwise), relief would properly be limited to prohibiting the enforcement of New York’s laws to compel Carpenter to provide wedding-related photography services for the weddings of same-sex couples. Carpenter would still be subject to the laws’ more general prohibition on refusing service based on a customer’s sexual orientation. As noted above, Carpenter disclaims any intention to refuse to provide other photography services to members of the LGBT community.

33 implicates the First Amendment in the way identified by the Supreme Court in

303 Creative. That task—separating the wheat from the chaff—is ultimately the

challenge that the district court must undertake on remand based on a developed

record and fact finding.

In sum, following 303 Creative, courts must consider whether (1) the law at

issue will compel a business owner to engage in activity she would not otherwise

engage in, and (2) that activity constitutes the owner’s expressive activity. To

determine whether services constitute expressive activity, courts must analyze

whether the vendor creates a medium of expression or communicates an idea

through their services or whether she simply engages in predominantly

nonexpressive activity of a commercial nature. This is a nuanced, indeed

sometimes “difficult,” inquiry whose application to public accommodations laws

is fact-intensive and varies depending on the context and nature of the goods and

services at issue.

What is clear, however, is that 303 Creative is far from an invitation for public

accommodations to discriminate against same-sex couples, or inter-faith couples,

34 or bi-racial couples, or any members of protected groups for that matter. To the

contrary—the Supreme Court affirmed that it “do[es] not question the vital role

public accommodations laws play in realizing the civil rights of all Americans”

and “recognized that governments in this country have a ‘compelling interest’ in

eliminating discrimination in places of public accommodation.”

(citation

omitted) (emphasis added). It called laws like Colorado’s or New York’s that

“expressly prohibit discrimination on the basis of sexual orientation” “entirely

unexceptional.”

(internal quotation marks omitted). And it insisted that

“Colorado and other States are generally free to apply their public

accommodations laws, including their provisions protecting gay persons, to a vast

array of businesses” given that “there are no doubt innumerable goods and services

that no one could argue implicate the First Amendment.”

(citation

omitted) (emphasis added); see also Hurley,

(noting that public

accommodations laws “do not, as a general matter, violate the First or Fourteenth

Amendments”). What 303 Creative did is clarify and reaffirm that in highly specific

factual circumstances, a public accommodations law can be “applied peculiarly to

35 compel expressive activity,” thereby violating the First Amendment. 303 Creative,

n.6 (cleaned up).

* * *

There is little daylight between the facts alleged by Carpenter and the facts

stipulated in 303 Creative. As a result, the parties now agree that Carpenter has

sufficiently alleged a free speech claim to survive a motion to dismiss. We adopt

that position and remand the claim to the district court. However, we decline

Carpenter’s invitation to direct entry of a preliminary injunction. On remand, the

district court must undertake that First Amendment analysis in the first instance

with the benefit of a fully developed factual record.

II. Free Association Claim

Carpenter also appeals the district court’s dismissal of her claim that New

York’s public accommodations laws violate her First Amendment right to

expressive association. Specifically, Carpenter argues that the laws violate her

associational rights because they impede her ability to publicly advocate her

36 support for opposite-sex marriage. We reject that argument and affirm the

dismissal of this claim.

Implicit in the First Amendment is the “right to associate for the purpose of

engaging in those activities protected by the First Amendment—speech, assembly,

petition for the redress of grievances, and the exercise of religion.” Roberts v. U.S.

Jaycees,

(1984). But to determine “whether a group is protected

by the First Amendment’s expressive associational right,” courts “must determine

whether the group engages in ‘expressive association.’” Boy Scouts of America v.

Dale,

(2000). If so, courts must then determine whether the law

at issue would “significantly burden” the association’s expression.

.

We need not reach the latter step of the inquiry because no “expressive

association” exists here. Here, Carpenter fails to allege that her business—a single-

member LLC that sells photography services to the public—is an association of

any kind, let alone an expressive association. And even if it were, requiring

Carpenter to photograph same-sex weddings would not compel her to accept

same-sex couples as members of her business. Rather, Carpenter would only

37 “‘associate’ with [same-sex couples] in the sense that [she] interact[s] with them”

as clients. FAIR,

.

To the extent that Carpenter’s claim is instead that requiring her to transact

with same-sex couples violates her First Amendment rights of association, that

argument fails both factually and legally. To start, Carpenter’s factual allegations

preclude any such claim surviving a motion to dismiss. A key component of

Carpenter’s argument is the assertion that she does not discriminate on the basis

of a customer’s identity. The first paragraph of her complaint states that “Emilee

decides whether to create based on what her artwork conveys, not who asks for it.”

App’x at 21; see also

(“Emilee is already willing to work with clients no matter

who they are, including those in the LGBT community.”). As one of our sister

circuits has concluded in evaluating a similar claim, it is “clear, then, that serving,

speaking to, and otherwise associating with gay and lesbian customers is not the

harm [Carpenter] seek[s] to remedy. [Her] real objection is to the message of the

[photographs] themselves, which is just another way of saying that the [New York

38 law] violates [her] free-speech rights.” Telescope Media Grp.,

. We

agree with this analysis, and it applies here.

Moreover, the logic of a generalized expressive association objection to

transacting with persons that vendors would like to avoid applies to all public

accommodation laws. Opponents of the Civil Rights Act of 1964 asserted this exact

objection, arguing that the Act would deny them “any freedom to speak or to act

on the basis of . . . their deep-rooted preferences for associating or not associating

with certain classifications of people.” 110 Cong. Rec. 7778 (1964) (remarks of Sen.

John Tower). But it has long since been settled that “[t]he Constitution does not

guarantee a right to choose employees, customers, suppliers, or those with whom

one engages in simple commercial transactions, without restraint from the State.”

Roberts,

(O’Connor, J., concurring). Any such contention therefore

fails as a matter of law.

Carpenter nevertheless argues that 303 Creative dictates reversal on the

freedom of expressive association claim in addition to her free speech claim. It

does not. As a preliminary matter, in granting certiorari, the Supreme Court

39 limited the question presented to “[w]hether applying a public-accommodation

law to compel an artist to speak or stay silent violates the Free Speech Clause of the

First Amendment.” 303 Creative LLC v. Elenis,

(2022) (emphasis

added). And indeed, its holding was limited to a finding that CADA would

compel speech in violation of the Free Speech Clause. Moreover, in reaching that

holding the Court made clear that “the parties’ stipulations le[d] the way to th[e]

conclusion” that Colorado’s anti-discrimination law would compel Lorie Smith to

speak, which violated the Free Speech Clause. 303 Creative,

. None

of those stipulations pertained to an associational-freedom claim. Therefore,

nothing in the holding of 303 Creative necessitates reversal of the district court’s

dismissal.

Carpenter attempts to draw support for a contrary conclusion from 303

Creative’s reference to Boy Scouts of America v. Dale,

(2000), a freedom

of association case. But that attempt falls short. In Dale, the Court held that a

public accommodations law implicated the Boy Scouts’ right to expressive

association because it required the organization to retain a gay rights activist as an

40 assistant scoutmaster.

. Such a requirement, the Court concluded,

“would significantly burden the organization’s right to oppose or disfavor

homosexual conduct.”

. But the Supreme Court has since clarified that

Dale’s holding is inapplicable if a public accommodations law “does not force [an

organization] to accept members it does not desire.” FAIR,

(internal

quotation marks omitted). A “speaker cannot erect a shield against laws requiring

access simply by asserting that mere association would impair its message.”

(internal quotation marks omitted). That is exactly what Carpenter’s associational

rights claim attempts to accomplish here. We thus affirm the district court’s

dismissal of Carpenter’s expressive association claim.

III. Free Exercise Claim

We also affirm the district court’s dismissal of Carpenter’s free exercise

claim.

The Free Exercise Clause protects “the ability of those who hold religious

beliefs of all kinds to live out their faiths in daily life through ‘the performance of

(or abstention from) physical acts.’” Kennedy v. Bremerton Sch. Dist.,

,

41 524 (2022) (quoting Emp. Div., Dep't of Hum. Res. of Or. v. Smith,

(1990)). However, it “does not relieve an individual of the obligation to comply

with a valid and neutral law of general applicability.” Kane v. De Blasio,

, 164 (2d Cir. 2021) (quoting Smith,

). A law that is both neutral

and generally applicable is subject to rational basis review.

By contrast, if a

law is “not neutral or not generally applicable, it is subject to strict scrutiny, and

the burden shifts to the government to establish that the law is narrowly tailored

to advance a compelling government interest.” We The Patriots USA, Inc. v. Conn.

Off. of Early Childhood Dev.,

(2d Cir. 2023).

The district court held that the challenged laws were neutral and generally

applicable and therefore subject to rational basis review. See Carpenter, 575 F.

Supp. 3d at 381-84. We agree. On appeal, Carpenter does not challenge the district

court’s neutrality holding. And for good reason. The challenged laws are neutral

both facially and as applied because they are not “specifically directed at a

religious practice.” Slattery v. Hochul,

(2d Cir. 2023) (internal

quotation marks omitted). Carpenter focuses instead on general applicability. In

42 particular, she claims that New York’s laws are not generally applicable because

they allow for individualized exemptions and treat comparable secular activity

more favorably than her religious exercise.

A law is not generally applicable if it selectively imposes burdens on

religious conduct. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

(1993). “The Supreme Court has explained that a law is not generally

applicable in at least two circumstances: first, where it ‘invites the government to

consider the particular reasons for a person's conduct by providing a mechanism

for individualized exemptions,’ and second, where it ‘prohibits religious conduct

while permitting secular conduct that undermines the government's asserted

interests in a similar way.’” We The Patriots USA,

(quoting Fulton v.

City of Philadelphia,

(2021)).

The challenged laws do not provide “a mechanism for individualized

exemptions,” meaning they do not invite government officials to consider whether

an individual’s reasons for requesting an exemption are meritorious. See

at 150

(quoting Fulton,

). Carpenter alleges that New York’s public

43 accommodations laws contain individualized exemptions because they permit

artists to refuse to create cakes with anti-LGBTQ or racist messages. But those

refusals are not exemptions for otherwise prohibited conduct. Rather, these

refusals are permitted because they are not based on a protected ground such as

race or sexual orientation. Accordingly, such conduct is simply not regulated by

New York’s antidiscrimination laws. See

(2)(a).

Carpenter points to other examples that purportedly support her argument

that New York’s laws allow for individualized exemptions. For instance,

Carpenter cites to administrative decisions issued by the New York Human Rights

Division. But in each decision, the administrative law judge (ALJ) found that the

complainant failed to show discrimination based on any protected ground. In

Battaglia v. Buffalo Niagara Introductions, Inc., the ALJ found that the complainant

was denied service for failing to provide sufficient information in his application,

not because of his disability status. No. 10138581,

(N.Y. Div.

Hum. Rts. Jan. 28, 2012). In Morgan v. Zaharo Cab Corp., the ALJ found that the

complainant was denied transportation because the taxi driver needed to continue

44 driving passengers already in his car, not because of her race or faith. No.

10117888,

(N.Y. Div. Hum. Rts. Nov. 14, 2008). Carpenter’s

reliance on New York Roadrunners Club v. State Division of Human Rights fares no

better.

(N.Y. 1982) (per curiam). There, the New York Court of

Appeals concluded that the New York City Marathon's requirement that

participants use their feet did not discriminate based on disability status, because

the requirement served legitimate purposes such as promoting fair competition.

. Contrary to Carpenter’s contentions, these decisions do not show that

the challenged laws create “individualized exemptions” to discriminate based on

sexual orientation or any other protected ground. The cited examples have no

bearing on the present question of whether the challenged laws create a system of

“individualized exemptions” that would render the laws not generally applicable.

Nor has Carpenter plausibly alleged that the challenged laws treat

“comparable secular activity more favorably than religious exercise.” Tandon v.

Newsom,

(2021) (per curiam). Indeed, she has failed to identify even

a single scenario where a public accommodation vendor may lawfully refuse

45 service based on a customer’s sexual orientation for secular reasons but not for

religious reasons. Instead, Carpenter alleges that New York’s public

accommodations laws permit sex discrimination “based on bona fide

considerations of public policy.”

(2)(b). And she argues from

this that New York treats similar secular activity more favorably than her religious

exercise, because sex and gender-identity discrimination may be permitted for

secular reasons while her religiously motivated conduct is prohibited.

But the religious conduct that Carpenter seeks to engage in is not

“comparable” to any sex-based discrimination justified by bona fide public policy

reasons. Comparability is measured “against the asserted government interest

that justifies the regulation at issue.” Tandon,

. Carpenter argues that

New York’s interest in eradicating discrimination applies “uniformly” to sexual

orientation and sex. Appellant’s Br. at 40. But New York’s interests in prohibiting

discrimination on different protected grounds are not identical, as unique policy

and legal considerations underlie how the public accommodations laws deal with

discrimination against members of different protected groups. It is well-

46 established that bona fide public policy reasons may justify differential treatment

by the government on the basis of sex. See, e.g., United States v. Virginia,

(1996); Buzzetti v. City of New York,

(2d Cir. 1998) (“[T]his

Court has consistently upheld statutes where the gender classification is not

invidious, but rather realistically reflects the fact that the sexes are not similarly

situated in certain circumstances.” (quoting Michael M. v. Superior Court of Sonoma

Cnty.,

(1981) (plurality opinion)). Moreover, New York’s asserted

interest in including sexual orientation as a protected ground in its public

accommodations laws is “[t]o prohibit discrimination based on sexual

orientation.” N.Y. Assembly Mem. in Support, in Bill Jacket for 2002 A.B. 1971,

Ch. 2, at 4 (2002). The conduct that Carpenter seeks to engage in would undermine

this asserted interest. In contrast, the limited public policy exemption for sex

discrimination does not “undermine[] the government’s asserted interest[]” in

prohibiting sexual orientation discrimination “in a similar way.” See Fulton,

.

47 New York’s public accommodations laws are therefore generally applicable

and subject to rational basis review. They easily satisfy rational basis review, as

the Supreme Court has long “recognized that governments in this country have a

‘compelling interest’ in eliminating discrimination in places of public

accommodation.” 303 Creative,

(quoting Roberts,

);

see also Masterpiece Cakeshop, 584 U.S. at 631 (“[R]eligious and philosophical

objections . . . do not allow business owners and other actors in the economy and

in society to deny protected persons equal access to goods and services under a

neutral and generally applicable public accommodations law.”). We therefore

affirm the district court’s dismissal of the free exercise claim.

IV. Establishment Clause Claim

Carpenter also alleges that the challenged laws violate the Establishment

Clause by forcing her to attend and participate in religious ceremonies to which

she objects. We agree with the district court that Carpenter has failed to state a

claim for violation of the Establishment Clause.

48 Under the Establishment Clause, the government may not “make a religious

observance compulsory,” “coerce anyone to attend church,” or “force citizens to

engage in a formal religious exercise.” Kennedy,

(cleaned up).

Carpenter alleges that New York’s public accommodations laws would force her

to attend and participate in same-sex weddings, which she believes are “inherently

religious” events. Appellant’s Br. at 42.

But the challenged laws would only require Carpenter to provide her

wedding photography services. Nowhere in her complaint does Carpenter allege

that she offers as a service to the public her active religious participation in the

weddings that she photographs. New York’s laws therefore do not require

Carpenter to sing, pray, follow an officiant’s instructions, act as a “witness” of the

union “before God,” or otherwise participate in any same-sex wedding.

While

Carpenter is free to choose to sing, pray, and express approval during the

opposite-sex weddings that she photographs, New York’s laws cannot plausibly

be construed to compel her to do the same at same-sex weddings. Carpenter has

made the decision to offer her services, some of which she personally views as

49 inherently religious, to the public. While a clergyperson who objects to gay

marriage cannot be compelled to perform a wedding ceremony for a same-sex

couple, that narrow exception cannot be broadened to the “long list of persons

who provide goods and services for marriages and weddings.” See Masterpiece

Cakeshop, 584 U.S. at 632.

Nor does Carpenter’s allegation that her mere presence at a same-sex

wedding violates her religious beliefs state a claim under the Establishment

Clause, because mere presence does not equate to coerced participation in any

religious activity. The activities that take place during a wedding are not directed

at the commercial photographer or any other wedding vendor—they are directed

at the marrying couple and the couple’s invited family and friends. Cf. Town of

Greece, N.Y. v. Galloway,

(2014) (concluding that mere presence

at a public prayer was not coercive because the public is not “directed” to

participate in prayer). As the Supreme Court has explained, “offense does not

equate to coercion.”

. The Establishment Clause does not include a

“modified heckler’s veto, in which . . . religious activity can be proscribed based

50 on perceptions or discomfort.” Kennedy,

(cleaned up). This is so

even accepting as true Carpenter’s allegations that she will feel “immense social

pressure” to attend and participate in the same-sex wedding. Appellant’s Br. at

42. Social pressure is not state coercion because “mature adults . . . presumably

are not readily susceptible to religious indoctrination or peer pressure.” Galloway,

(internal quotation marks omitted). As the Supreme Court has

emphasized, “learning how to tolerate diverse expressive activities has always

been ‘part of learning how to live in a pluralistic society.’” Kennedy,

(quoting Lee v. Weisman,

(1992)).

For the foregoing reasons, we affirm the district court’s dismissal of the

Establishment Clause claim.

V. Vagueness Claim

Carpenter’s final two claims focus on the Unwelcome Clause of New York’s

Human Rights Law, which prohibits communications conveying that the

patronage of persons with certain protected characteristics is “unwelcome,

objectionable or not acceptable, desired or solicited.”

(2)(a).

51 Carpenter argues that this statutory language is unconstitutionally vague, in

violation of due process. Like the district court, we conclude that Carpenter has

failed to state a valid vagueness claim.

A statute is unconstitutionally vague if it “fails to provide people of

ordinary intelligence a reasonable opportunity to understand what conduct it

prohibits,” or if it “authorizes or even encourages arbitrary and discriminatory

enforcement.” Hill v. Colorado,

(2000). Here, though, Carpenter’s

vagueness claim cannot get off the ground, because her own desired speech is

clearly covered by the statute. “[A] plaintiff who engages in some conduct that is

clearly proscribed cannot complain of the vagueness of the law as applied to the

conduct of others.” Holder v. Humanitarian Law Project,

(2010)

(internal quotation marks omitted). And “[t]hat rule makes no exception for

conduct in the form of speech.” Id.; accord Expressions Hair Design v. Schneiderman,

(2017).

Carpenter argues that this rule does not apply to vagueness claims based on

unbridled enforcement discretion, relying on a D.C. Circuit case. See Act Now to

52 Stop War & End Racism Coal. & Muslim Am. Soc’y Freedom Found. v. District of

Columbia,

(D.C. Cir. 2017). We have not decided that question.

Nor do we have to decide it here, because even if that is true, Carpenter has not

pled a plausible unbridled discretion claim.

Carpenter’s complaint cannot plausibly allege that the Unwelcome Clause

gives New York authorities unbridled discretion when she “fail[s] to cite even a

single example of discrimination in enforcement . . . much less show . . . a pattern

of discriminatory enforcement.” Telescope Media Grp.,

(rejecting a

vagueness challenge to a Minnesota public accommodations law); see also Smith v.

Goguen,

, 582 n.31 (1974) (noting that “the validity of statutes . . . insofar

as the vagueness doctrine is concerned, will depend as much on their judicial

construction and enforcement history as their literal terms” (emphasis added)).

Without a plausible unbridled discretion argument, Carpenter’s vagueness claim

is clearly foreclosed by Supreme Court precedent, and we affirm its dismissal.

53 VI. Overbreadth Claim

Finally, like the district court, we conclude that Carpenter has waived any

claim that the Unwelcome Clause is facially overbroad. The “strong medicine” of

the overbreadth doctrine is to be used “sparingly and only as a last resort.”

Sanitation & Recycling Indus., Inc. v. City of New York,

, 997 (2d Cir. 1997)

(quoting Broadrick v. Oklahoma,

(1973)). We will not consider

using it here where Carpenter’s complaint raises no distinct overbreadth claim and

makes only passing reference to overbreadth on two occasions within 350

paragraphs, buried in lists of First Amendment doctrines without supporting

factual allegations. The claim was further waived in Carpenter’s briefing, which

is comparably sparse and fails to provide any basis for the assertion that the law

“bans too much.” Appellant’s Br. at 60. Through inadequate pleading and

briefing, Carpenter has failed to adequately present this claim to the Court, and

we therefore affirm the district court’s dismissal on this ground.

54 CONCLUSION

The issues in this case require courts to accommodate competing

commitments to equality and to the expressive freedoms guaranteed by the First

Amendment. On the one hand, it is clear that the First Amendment protects the

“freedom to think as you will and to speak as you think.” 303 Creative,

(quoting Dale,

). Laws that are applied to public discourse to

coercively alter the messages of private individuals abridge that freedom. Id. at

586-87.

On the other hand, it is equally clear that “gay persons and gay couples

cannot be treated as social outcasts or as inferior in dignity and worth,” and that

“the laws and the Constitution can, and in some instances must, protect them in

the exercise of their civil rights.” Masterpiece Cakeshop, 584 U.S. at 631. One

important way of guaranteeing this protection is through the longstanding

tradition of public accommodations laws, which states have “broad authority” to

enact in order to remove “the barriers to economic advancement and political and

social integration that have historically plagued certain disadvantaged groups.”

55 Roberts,

; see also 303 Creative,

. In light of these

compelling interests, public accommodations laws generally do not violate the

First or Fourteenth Amendments, unless they are applied in a “peculiar way” so

as to compel speech. Hurley,

; see also 303 Creative,

n.6.

Following the Supreme Court’s decision in 303 Creative, we agree with

Defendants’ concession that Carpenter’s complaint states a claim that New York’s

public accommodations laws compel her to speak in violation of the First

Amendment. However, in light of 303 Creative’s fact-intensive First Amendment

analysis, we deny Carpenter’s request for entry of a preliminary injunction and

instead remand to the district court for determination on a factual record. As to

all of her other claims, we hold that dismissal was proper. Accordingly, the

judgment of the United States District Court for the Western District of New York

is AFFIRMED in part, REVERSED in part, and VACATED in part. We REMAND

for further proceedings consistent with this Opinion.

56