Is only political or news-related art constitutionally protected?
wasserma at fiu.edu
wasserma at fiu.edu
Thu Apr 10 14:06:14 PDT 2008
One of the points in Hurley was that a message may consist of parts of other speakers incorporated into one's own message. That may be a better way of understanding what a wedding photographer does--she creates an artistic image of the events, combining her own vision with the (presumably compatible) vision of the couple/parents/whomever. She is more than a conduit or a common carrier--she brings something new and unique to the final expression, which is why the couple chose her over another photographer with different images.
Howard M. Wasserman
Visiting Associate Professor of Law (2007-08)
St. Louis University School of Law
3700 Lindell Blvd.
St. Louis, MO 63108
(314) 977-2773
hwasser1 at fiu.edu
Associate Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida 33199
(305) 348-7482
howard.wasserman at fiu.edu
---- Original message ----
>Date: Thu, 10 Apr 2008 13:41:53 -0700 (PDT)
>From: Malla Pollack <mallapollack at yahoo.com>
>Subject: Re: Is only political or news-related art constitutionally protected?
>To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>, conlawprof at lists.ucla.edu
>
> Eugene continues to misunderstand my comments.
> Regardless of the high quality of wedding
> photographs, in most cases the photographer is not
> trying to communicate HIS OWN MESSAGE. He is in a
> free speech sense the "agent" or "medium" being used
> by the person (s) who set up the wedding (which may
> be the couple, one set of parents, etc.) Despite
> the hard work involved in taking photographs, from a
> free speech perspective the standard for-hire
> wedding photographer is more like the conduit of
> others' speech than the speaker -- e.g. a telephone
> company. Or to borrow from another poster in this
> thread, like the common carrier taxi driver. The
> photographer is a business-man who has decided to
> make his living by supplying a service to those who
> want it. That the service involves producing a
> product which can be used by others to express their
> own views is simply irrelevant. He is acting as a
> "public accomodation" and should not be allowed to
> selectively limit his clients.
> And yes, I think that Eugene's misunderstanding
> stems from confusing copyright and free speech
> concepts.
> Malla Pollack
>
> ----- Original Message ----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> To: conlawprof at lists.ucla.edu
> Sent: Thursday, April 10, 2008 3:04:29 PM
> Subject: Is only political or news-related art
> constitutionally protected?
>
> Doesn't the argument below take a rather narrow
> view of artistic speech?
>
> Much artistic speech (much painting,
> photography, instrumental music, and the like)
> neither records newsworthy events nor shows a
> viewpoint. Yet the Court has expressly said that
> even abstract painting, atonal music, and nonsense
> verse are constitutionally protected (see Hurley).
> A fortiori, representational painting and
> photography is protected, even when it (like
> the Hurley Court's examples) doesn't convey
> newsworthy events or a viewpoint. Likewise, Miller
> v. California makes clear that even sexually themed
> speech, despite its historical suppression, is
> constitutionally protected when it has *artistic*
> value, even independently of its political value.
>
> Here the photographer is not just supplying food
> or flowers, or just allowing its equipment to be
> used to literally transmit others' work. Rather,
> the photographer is making artistic judgments that
> create a pretty valuable artistic work (even if not
> high art). What First Amendment basis is there for
> concluding that the compelled speech doctrine
> doesn't apply to this artistic work because the work
> doesn't express a "viewpoint" or record "newsworthy
> events"?
>
> I should note, by the way, that I take it that
> many wedding photographs are aimed at expressing a
> viewpoint of enthusiasm about the wedding and the
> marriage, which is why a photo album filled with
> pictures of wedding party members and guests caught
> in sad moments would be seen as incompetent wedding
> photography. But my chief point is that courts need
> not get into this, because "a narrow, succinctly
> articulable message is not a condition of
> constitutional protection," Hurley.
>
> As to "the empirical fact[s]," I appreciate the
> report of Prof. Pollack's experience, but I take it
> that wedding photographers would differ. Here, for
> instance, is a comment
> (http://volokh.com/posts/1207768055.shtml#350940)
> from my blog: "I worked my way through law school
> by shooting weddings. There is a huge amount of
> skill, planning and creative effort that goes into
> things like capturing the bride just as the sunlight
> from the clerestory reflects at the proper angle off
> the wall to illuminate the folds and texture of her
> dress, and getting the right angle and f/stop for
> the shot of the ring being placed with the alter
> flowers arranged correctly in the background in with
> just the right amount of depth-of-field blur. People
> who are able to recognize this kind of skill and
> effort sometimes pay much more for good wedding
> photography than they do for a gallery oil-painting.
> I personally spent years learning, and got good
> enough at it that it did not pay for me to stop
> until after I made partner in my law firm." I would
> be inclined to doubt that a court could simply
> conclude that wedding photography isn't really art,
> but just the equivalent of sending a fax.
>
> Eugene
>
>
>
>
> ------------------------------------------------
>
> From: Malla Pollack [mailto:mallapollack at yahoo.com]
> Sent: Thursday, April 10, 2008 12:31 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: Re: Do photographers have a First Amendment
> right to choose what they photograph?
>
> 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
>
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