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Case 6:21-Cv-06303-FPG Document 57 Filed 07/07/21 Page 1 of 36 Case 6:21-cv-06303-FPG Document 57 Filed 07/07/21 Page 1 of 36 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK Emilee Carpenter, LLC d/b/a Emilee Carpenter Photography and Emilee Carpenter, Plaintiffs, v. Case No. 6:21-cv-06303 Memorandum of Law In Letitia James, in her official capacity Response to State Defendant’s as Attorney General of New York; Motion to Dismiss Johnathan J. Smith, in his official capacity as Interim Commissioner of Oral Argument Requested the New York State Division of Human Rights; and Weeden Wetmore, in his official capacity as District Attorney of Chemung County, Defendants. Case 6:21-cv-06303-FPG Document 57 Filed 07/07/21 Page 2 of 36 TABLE OF CONTENTS Table of Authorities ...................................................................................................... iii Introduction ................................................................................................................... 1 Argument ....................................................................................................................... 2 I. Emilee has standing to challenge New York’s laws. ......................................... 3 A. Emilee has standing to challenge New York’s laws because they credibly threaten and chill her expressive activities. ............................. 3 1. Emilee faces a credible threat because New York’s laws arguably cover her speech. ............................................................ 4 2. Many other factors confirm Emilee’s credible threat. .................. 7 3. Emilee does not rely on independent actors or need to show a specific enforcement threat. ....................................................... 9 B. Emilee has competitor and competitor-advocate standing because the laws burden her compared to her competitors. .............................. 11 C. The Attorney General causes Emilee’s injuries and lacks Eleventh Amendment immunity. .......................................................................... 12 II. Emilee states plausible First Amendment claims. .......................................... 14 A. New York’s laws compel and restrict Emilee’s protected speech. ........ 14 1. The Accommodations and Discrimination Clauses compel Emilee to speak. ........................................................................... 14 2. Emilee seeks the narrow right to decline to speak based on message, not status. .................................................................... 17 3. The Accommodations and Discrimination Clauses compel Emilee’s speech based on content and viewpoint. ...................... 20 4. The Clauses restrict Emilee’s speech based on content and viewpoint as New York admits. .................................................. 20 B. New York’s laws compel and restrict Emilee’s expressive association. ............................................................................................. 22 i Case 6:21-cv-06303-FPG Document 57 Filed 07/07/21 Page 3 of 36 C. New York’s laws violate Emilee’s free-exercise and establishment rights. ...................................................................................................... 24 D. The Unwelcome Clause is facially vague, overbroad, and grant officials unbridled discretion. ................................................................. 24 Conclusion ................................................................................................................... 25 ii Case 6:21-cv-06303-FPG Document 57 Filed 07/07/21 Page 4 of 36 Table of Authorities Cases 281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011) ....................................................................... 12, 13 303 Creative LLC v. Elenis, No. 16-cv-02372-MSK-CBS, 2017 WL 4331065 (D. Colo. Sept. 1, 2017) ........ 10 Act Now to Stop War & End Racism Coaition & Muslim American Society Freedom Foundation v. District of Columbia, 846 F.3d 391 (D.C. Cir. 2017) ........................................................................... 25 American Booksellers Foundation v. Dean, 342 F.3d 96 (2d Cir. 2003) .................................................................................. 8 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................. 2 Athenaeum v. National Lawyers Guild, Inc., No. 653668/16, 2018 WL 1172597 (N.Y. Sup. Ct. Mar. 06, 2018) ......................................................................................... 6, 19, 20 Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979) ......................................................................................... 4, 9 Bennett v. Spear, 520 U.S. 154 (1997) ........................................................................................... 10 Bigelow v. Virginia, 421 U.S. 809 (1975) ........................................................................................... 21 Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996) ............................................................................... 13 Bolger v. Youngs Drug Products Corporation, 463 U.S. 60 (1983) ............................................................................................. 22 Boy Scouts of America v. Dale, 530 U.S. 640 (2000) ..................................................................................... 22, 23 Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019) ........................................................................... passim Buehrle v. City of Key West, 813 F.3d 973 (11th Cir. 2015) ........................................................................... 19 iii Case 6:21-cv-06303-FPG Document 57 Filed 07/07/21 Page 5 of 36 Cantwell v. Connecticut, 310 U.S. 296 (1940) ........................................................................................... 15 Carey v. Population Services, International, 431 U.S. 678 (1977) ........................................................................................... 21 Carter v. HealthPort Technologies, LLC, 822 F.3d 47 (2d Cir. 2016) .................................................................................. 2 Cayuga Nation v. Tanner, 824 F.3d 321 (2d Cir. 2016) ............................................................................ 4, 7 Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002) ........................................................................ 11, 12 Chelsey Nelson Photography LLC v. Louisville/Jefferson County Metro Government, 479 F. Supp. 3d 543 (W.D. Ky. 2020) ........................................................ passim Chevron Corporation v. Donziger, 833 F.3d 74 (2d Cir. 2016) ................................................................................ 12 Clapper v. Amnesty International USA, 568 U.S. 398 (2013) ................................................................................... 8, 9, 10 Cohen v. California, 403 U.S. 15 (1971) ............................................................................................. 15 Consumer Data Industry Association v. King, 678 F.3d 898 (10th Cir. 2012) ........................................................................... 12 Copeland v. Vance, 893 F.3d 101 (2d Cir. 2018) .............................................................................. 25 Doe v. Bolton, 410 U.S. 179 (1973) ............................................................................................. 8 Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013) ............................................................................... 5, 16 Entertainment Software Association v. Blagojevich, 469 F.3d 641 (7th Cir. 2006) ............................................................................. 15 Ex Parte Young, 209 U.S. 123 (1908) ........................................................................................... 12 iv Case 6:21-cv-06303-FPG Document 57 Filed 07/07/21 Page 6 of 36 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) ..................................................................................... 24, 25 Green v. Miss United States of America, LLC, No. 19-cv-02048-MO, 2021 WL 1318665 (D. Or. Apr. 8, 2021) ....................... 23 Harrell v. Florida Bar, 608 F.3d 1241 (11th Cir. 2010) ........................................................................... 7 Harris v. Quinn, 573 U.S. 616 (2014) ........................................................................................... 22 HealthNow New York, Inc. v. New York, 739 F. Supp. 2d 286 (W.D.N.Y. 2010) ......................................................... 13, 14 Hedges v. Obama, 724 F.3d 170 (2d Cir. 2013) ............................................................................ 3, 4 Hess v. Indiana, 414 U.S. 105 (1973) ........................................................................................... 15 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ............................................................................................... 15 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) ......................................................................... 15, 17, 18, 20 In re United States Catholic Conference, 885 F.2d 1020 (2d Cir. 1989) ............................................................................ 11 Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005) ..........................................................................................
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