Do photographers have a First Amendment right to choose what they photograph?
VOLOKH at law.ucla.edu
Wed Apr 9 15:49:05 PDT 2008
The New Mexico Human Rights Commission just decided the Willock
v. Elane Photography case we discussed a while back: It held that
wedding photographers are public accommodations, and that their refusal
to photograph a same-sex wedding is a violation of New Mexico's ban on
sexual orientation discrimination in places of public accommodation.
Elane Photography, owned by Elaine Huguenin (the principal photographer
at the firm, though she sometimes hires subcontractors to help) and her
husband, was ordered to pay over $6600 in costs and attorney fees.
Does this violate Huguenin's right to be free from compelled
speech (here in the form of a right to be free from being compelled to
produce artistic expression)?
A hypothetical: Say that instead of Willock's trying to hire a
photographer, Willock was trying to hire a solo freelance writer (or a
writer in a two-person freelancing partnership) to write materials for
Willock's (hypothetical) same-sex marriage planning company. The writer
refused on the grounds that she didn't want to promote such a company.
Assume the statute is read as covering the writer as much as it would
cover the photographer (why wouldn't it?). Does this violate the
writer's right to be free from compelled speech?
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