Do photographers have a First Amendment right to choose what they photograph?

[Malla Pollack]

I think that Eugene's problem comes from a copyright-induced mindset.  Since pictures are protected by copyright, they must be an expression of individuality -- like words -- for purposes of free speech.   However, having spent a number of pre-law school years married to a photograph who did weddings and helping to run a photofinishing plant that did work for wedding photographers, I know different. 

Ask yourself, should someone be allowed to refuse to cater food for a same-sex wedding; let a same-sex wedding take place in his restaurant, do the flowers for a same-sex wedding? 
Malla Pollack
Barkley School of Law

----- Original Message ----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: conlawprof at lists.ucla.edu
Sent: Wednesday, April 9, 2008 5:49:05 PM
Subject: Do photographers have a First Amendment right to choose what they photograph?

    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?

    Eugene
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