Do photographers have a First Amendment right to choosewhat they photograph?
VOLOKH at law.ucla.edu
Thu Apr 10 12:49:47 PDT 2008
I'm a bit puzzled here.
(1) Surely "it is implausible [for New Mexico law] to suggest
that discrimination against gays is not a legitimate political position"
in the context of commitment ceremonies. New Mexico law, after all,
*itself* discriminates against same-sex commitment ceremonies --
opposite-sex ceremonies can be marriages, same-sex ones can't be.
Whether or not New Mexico law can ban private discrimination against
such ceremonies, I don't see any basis on which it can say that
discrimination against such ceremonies "is not a legitimate political
(2) But more broadly, whether or not the law treats such
discrimination as "a legitimate political position" doesn't seem to me
particularly relevant to the compelled speech question. Doubtless West
Virginia thought that refusal to pledge allegiance to the flag "is not a
legitimate political position in a society," but the compelled pledge
was nonetheless treated as unconstitutionally compelled speech.
The question is whether compelling a photographer to create
photographs -- or compelling a freelance writer to write copy for a
same-sex marriage promotion service, or for a Scientology organization
(my hypotheticals, which Frank mentioned in a blog comment he would
likewise treat as constitutionally permissible) -- is permissible, given
Wooley, Barnette, Miami Herald, Riley, PG&E, and other cases.
To say that this involves the "commercial context" hardly
answers the question: The Miami Herald is sold commercially, and PG&E
was speaking to its commercial customers. I agree that speech
compulsions as to *commercial advertising* are permissible; those are
the drug label and security sales examples. But Elaine Huguenin isn't
being compelled to put a disclaimer on her advertising (e.g., "Note:
This business does not treat customers equally without regard to sexual
orientation"). She is being required to create an artistic work, just
as the freelance writer would be required to create text.
That they're being paid for this work doesn't strip them of
First Amendment protection in the speech restriction context (see, e.g.,
Simon & Schuster, among very many other cases). Why should it strip
them of First Amendment protection in the speech compulsion context,
especially given the speech compulsion cases such as Miami Herald and
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Frank Cross
> Sent: Thursday, April 10, 2008 12:03 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Do photographers have a First Amendment right to
> choosewhat they photograph?
> 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
> >(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)
> >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
> >against compelled speech -- or does it?
> > I leave the broader religious exemption and association
> >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
> >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
> > v. Elane Photography case we discussed a while
> back: It held
> > 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
> > Elane Photography, owned by Elaine Huguenin (the principal
> > at the firm, though she sometimes hires subcontractors to
> >help) and her
> > husband, was ordered to pay over $6600 in costs and
> > 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
> >The writer
> > refused on the grounds that she didn't want to
> promote such a
> > Assume the statute is read as covering the writer
> as much as
> >it would
> > cover the photographer (why wouldn't it?). Does
> this violate
> > 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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