Can a newspaper decline to run same-sex wedding announcements?

Can a newspaper decline to run same-sex wedding announcements?

Attorney's Opinion by Alicia Calzada, Haynes & Boone, LLP

With the release of the historic United States Supreme Court’s decision in Obergefell v. Hodges declaring the right of same-sex couples to marry, some in the newspaper industry are left wondering whether a newspaper may decline to publish same-sex wedding announcements. The opinion itself and relevant First Amendment case law seem to make clear that the answer is yes. Newspapers have the discretion to refuse to publish a same-sex wedding or engagement announcement- or any other advertising they don’t wish to publish. First it is helpful to view the Obergefell decision for what it is- a ruling on the constitutional rights of same-sex couples to wed, as a fundamental constitutional right, and a ruling that the constitution bans states from blocking or interfering with that marriage.  The two primary holdings in the decision are 1) “The Constitution…does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex” [1]; and 2) “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”[2] Both are Constitutional requirements imposed on States and state actors. Constitutional rights are rights that generally prohibit the government from interfering with fundamental rights, not rights compelling other citizens to act.  Indeed in the same opinion, the Court recognized that, “those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” [3] This right to speak freely on the issue (or choose to not speak) is in line with a long line of Supreme Court cases on the right to choose what to say and what not to say. Decades ago, the Supreme Court addressed a state law in Florida that required newspapers to allow political candidates space in the newspaper to reply to criticism. In that case the Court said that a compulsion to publish is unconstitutional, stating that, “[a] responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”[4] The court expounded on that principle, explaining that “the choice of material to go into a newspaper … whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press…”[5] The analysis probably would not change if a public accommodation law is in place prohibiting discrimination based on sexual orientation. Public accommodation laws prohibit businesses from discriminating against protected classes of people when they provide services. The State of Texas has no public accommodation law prohibiting discrimination based on sexual orientation[6], although some cities in Texas, such as San Antonio, have non-discrimination ordinances that apply to sexual orientation. In Massachusetts, there has long been a public accommodations law prohibiting discrimination based on sexual orientation. But that law was held inapplicable to parade organizers who refused to allow a gay rights group to march in their parade. The U.S. Supreme Court held that while the non-discrimination law did not generally violate the First Amendment, using the law to require parade organizers to include messages they didn’t agree with would violate “the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.”[7] It is likely that the right to decide what to print does not change just because wedding announcements are paid.  The U.S. Seventh and Ninth circuit courts of appeal have directly addressed the question of whether a newspaper may be forced to accept advertising and both have answered no. In the Seventh Circuit case, newspapers in Chicago did not have to accept advertisements from a Union. That court wrote that “The Union's right to free speech does not give it the right to make use of the defendants’ printing presses and distribution systems without defendants’ consent”.[8] The Ninth Circuit similarly held that it could find “nothing in the United States Constitution, any federal statute, or any controlling precedent that allows us to compel a private newspaper to publish advertisements without editorial control of their content merely because such advertisements are not legally obscene or unlawful.”[9] In sum, while the Obergefell decision compels governments to issue marriage licenses, it does not compel news organizations to print or publish anything about those licenses. Further, to the extent that other laws may prohibit discrimination based on sexual orientation, it would likely be a violation of the First Amendment for a state or local law to be applied to force a newspaper to accept an advertisement or publish an announcement against the wishes of the publisher.

[1] Obergefell v. Hodges, 14-556, 2015 WL 2473451, at *27 (U.S. June 26, 2015).
[2] Id. at *28.
[3]Id. at *27.
[4]Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 256, 94 S. Ct. 2831, 2838-39, 41 L. Ed. 2d 730 (1974).
[5]Id. at 258.
[7] Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 558, 115 S. Ct. 2338, 2340, 132 L. Ed. 2d 487 (1995).
[8]Chicago Joint Bd., Amalgamated Clothing Workers of Am., AFL-CIO v. Chicago Tribune Co., 435 F.2d 470, 478 (7th Cir. 1970).
[9] Associates & Aldrich Co. v. Times Mirror Co., 440 F.2d 133, 136 (9th Cir. 1971).