Is only political or news-related art constitutionally protected?
VOLOKH at law.ucla.edu
Thu Apr 10 15:13:38 PDT 2008
But Barnette and Maynard both explicitly involved compulsions to
communicate others' messages. Maynard was required to have a state's
message on his car; Barnette was required to say the state's message.
In both cases, but especially in Maynard, everyone would understand that
this is the state's message. The same is largely true of Miami Herald,
Riley, PG&E, Hurley, and other cases. So compelled speech doctrine does
make clear that people can't be required by the government to speak in
ways that convey others' messages.
To be compelled speech, there must be speech: It's important that
the photographer is actually making a photograph, and not just bringing
food to the party. But he can't be compelled to make speech that
reflects the government's message, another party's message, or even the
photographer's message; that, it seems to me, is precisely what the
caselaw points to.
Malla Pollack writes:
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.
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