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

Frank Cross crossf at mail.utexas.edu
Thu Apr 10 12:03:25 PDT 2008


I think that photography is a form of expression but that it's not 
horribly objectionable to compel expression.  Government compels 
expression all the time in the commercial context.  Try to sell a 
drug without a label.  Or try to sell securities without complying 
with the SEC disclosure rules.  I think this photographer case is 
controversial because people believe that discriminating against gays 
is a plausible moral or political position.  It's not my business to 
make the latter call, but I don't think it is implausible to suggest 
that such discrimination is not a legitimate political position in a society.

At 01:26 PM 4/10/2008, Volokh, Eugene wrote:
>     Well, since First Amendment law is my dayjob, I think my view comes
>from a free-speech-induced mindset.
>
>     I take it that we'd agree that photography is generally a
>First-Amendment-protected medium, in a way that food production, food
>service, and flower delivery is not, and in a way that flower arranging
>probably is not (though I note Mark's argument to the contrary).  Thus,
>for instance, barring photographers from taking certain kinds of photos
>would raise a First Amendment issue in a way that barring catering
>services from making certain kinds of food wouldn't.
>
>     Malla's post, though, seems to suggest that this applies only to
>"art photography" (which includes commercial photography, of course,
>since many artists are businesspeople, and many more strive to be), and
>doesn't apply to "mere wedding photography."  I take it that the
>argument would be that a wedding photographer -- even one with a
>supposedly photojournalist style such as Elaine Huguenin's -- is somehow
>so banal and uncreative that her work doesn't rise to the level of First
>Amendment protection.  I wonder, though, whether the First Amendment
>turns on such judgments about "true art" vs. "mere hackery" (or whatever
>the equivalent will be for photography); my sense is that it wouldn't,
>though I'd love to hear the contrary arguments.
>
>     This is one reason I gave my 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?  Recall that this too is not high literature or
>commentary but a relatively banal textual genre (press releases and the
>like).  Yet that doesn't strip the writer of First Amendment protection
>against compelled speech -- or does it?
>
>     I leave the broader religious exemption and association arguments to
>others, who have already commented on them.  Here, I want to speak
>solely of the compelled speech question.
>
>     Eugene
>
>
>________________________________
>
>         From: Malla Pollack [mailto:mallapollack at yahoo.com]
>         Sent: Thursday, April 10, 2008 9:02 AM
>         To: Volokh, Eugene; conlawprof at lists.ucla.edu
>         Subject: Re: Do photographers have a First Amendment right to
>choose what they photograph?
>
>
>         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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Frank B. Cross
Herbert D. Kelleher Centennial Professor of Business Law
McCombs School of Business
University of Texas
CBA 5.202 (B6500)
Austin, TX 78712-0212
512.471.5250  


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