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

Thu Apr 10 12:31:18 PDT 2008

Eugene misunderstands me.  I am not saying that wedding photography cannot be "artistic."  I am saying that in most cases a wedding photographer is not taking pictures to either (i) show his view point, or (ii) record news worthy events for circulation to the general public.   Therefore, the photographs are not related to either the photographer's  autonomy or the public's need for information.
    This is not "compelled speech" any more than making anti-alcohol taxi drivers pick up men outside bars is compelled support for alcohol.  Perhaps another analogy would be clearer:   the case for the photographer is not any different (in my view) from the case of  a businessman with an office supply/service store who wants the right to refuse to send my documents by facsimile because s/he disagrees with what my documents say.
    One could, of course, use a photograph to communicate one's own views -- but (as someone who spent over ten years dealing with wedding photographers) I am reporting the empirical fact that this is not how people who make a living taking wedding photographs (or their clients) see photography at weddings.   

Malla Pollack
----- Original Message ----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: conlawprof at lists.ucla.edu
Sent: Thursday, April 10, 2008 1:26:27 PM
Subject: RE: Do photographers have a First Amendment right to choose what they photograph?

    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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