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

Ilya Somin isomin at gmu.edu
Thu Apr 10 15:18:19 PDT 2008


I should also note that providers of personal and professional services are not usually considered "public accomodations" under common law or state law. Unlike actual public accomodations such as malls or hotels, they have the legal right to reject paying customers for capricious reasons or no reason at all. Even if a given producer of speech or expression were indeed a "public accomodation," I don't think that would be enough to override their free speech rights. But the fact that they are not public accomodations weakens the argument for doing so still further.

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339


----- Original Message -----
From: Malla Pollack <mallapollack at yahoo.com>
Date: Thursday, April 10, 2008 6:12 pm
Subject: Re: RE: Do photographers have a First Amendment right to choose what they photograph?

> What Ilya and Eugene are doing is lumping together all 
> practitioners of an expressive form, and then using the Romantic 
> Author model for all of them.   See The Construction of Authorship 
> (ed. Martha Woodmansee and Peter Jaszi).   But this is factually 
> incorrect to the way most photographers for hire see themselves or 
> behave.  If the photographer involved (which I have been assuming 
> is not the case) advertises himself and behaves as an "artist", ie 
> takes and rejects clients consistently for his own art or agenda 
> reasons, then I agree he should not be held to be a "public 
> accomodation."   However, having been involved in the business, I 
> know that this is an extreme rarity.  
> 
> The usual model is that a photographer will hire himself out (or 
> accept subcontracts from other photographers) with only basic 
> limits on e.g. how far he will travel (for time reasons), how long 
> he can be expected to be on the job, and what dates he is 
> available.  If such a person balks on one occassion because he 
> dislikes the couple's views etc,  he is (as far as I am concerned) 
> no different than a restaurant owner who suddenly decides to close 
> early because a group of African Americans is about to walk into 
> his restaurant.  
> 
> Malla
> 
> ----- Original Message ----
> From: Ilya Somin <isomin at gmu.edu>
> To: Malla Pollack <mallapollack at yahoo.com>
> Cc: Janet Alexander <jca at stanford.edu>; "Volokh, Eugene" 
> <VOLOKH at law.ucla.edu>; conlawprof at lists.ucla.edu
> Sent: Thursday, April 10, 2008 4:50:34 PM
> Subject: Re: RE: Do photographers have a First Amendment right to 
> choose what they photograph?
> 
> Let's say I was a professional columnist like George Will or David 
> Broder. I don't think the constitutional analysis would change. 
> Can a professional artist be required to paint publicity portraits 
> of political leaders whose agendas he opposes? I'm pretty sure 
> that the standard First Amendment analysis would forbid that.
> 
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
> 
> 
> ----- Original Message -----
> From: Malla Pollack <mallapollack at yahoo.com>
> Date: Thursday, April 10, 2008 5:46 pm
> Subject: Re: RE: Do photographers have a First Amendment right to 
> choose what they photograph?
> 
> > Unlike our wedding photographer, however, Ilya does not hold 
> > himself out to the public as generally available to write op ed 
> > pieces for anyone who wishes to pay.  
> > Malla 
> > 
> > ----- Original Message ----
> > From: Ilya Somin <isomin at gmu.edu>
> > To: Janet Alexander <jca at stanford.edu>
> > Cc: "Volokh, Eugene" <VOLOKH at law.ucla.edu>; 
> conlawprof at lists.ucla.edu> Sent: Thursday, April 10, 2008 4:37:48 PM
> > Subject: Re: RE: Do photographers have a First Amendment right 
> to 
> > choose what they photograph?
> > 
> > I doubt that a constitutional distinction can turn on the fact 
> > that a photo is produced for the sole use of the purchaser. A 
> work 
> > of art that is produced  for the purpose of hanging in my 
> bedroom 
> > is still speech, even if the artist produced it in order to get 
> > the money I pay him. 
> > 
> > Moreover, wedding photos are in fact often shown to other people 
> > by the owner (that is part of their purpose). In that respect, 
> > they are not much different from a wide range of different 
> > expressive activities, where speech or art or expression is 
> > produced by one person for pay and then distribution  is under 
> the 
> > exclusive control of whoever hired them. If I write an op ed, 
> > distribution and republication is (usually) under the exclusive 
> > control of the newspaper or magazine that paid for it. 
> > 
> > True, op eds are (usually) disseminated more widely than wedding 
> > photos. But whether or not something is constitutionally 
> protected 
> > speech generally doesn't turn on how widely it is disseminated. 
> I 
> > can refuse to write an op ed espousing a view I dislike even if 
> > the paper in question is only distributed to a handful of people 
> > and even if I have reprehensible racist, homophobic, or other 
> > disreputable reasons for my refusal.
> > 
> > Ilya Somin
> > Assistant Professor of Law
> > George Mason University School of Law
> > 3301 Fairfax Dr.
> > Arlington, VA 22201
> > ph: 703-993-8069
> > fax: 703-993-8202
> > e-mail: isomin at gmu.edu
> > Website: http://mason.gmu.edu/~isomin/
> > SSRN Page: http://ssrn.com/author=333339
> > 
> > 
> > ----- Original Message -----
> > From: Janet Alexander <jca at stanford.edu>
> > Date: Thursday, April 10, 2008 5:18 pm
> > Subject: RE: Do photographers have a First Amendment right to 
> > choose    what they photograph?
> > 
> > > I agree that photography "is generally a First-Amendment-
> > protected 
> > > medium," but is there a distinction where the photographs are 
> > made 
> > > in 
> > > a commercial transaction, for the exclusive use of the 
> purchaser 
> > ? 
> > > I 
> > > would be very surprised (to the point of litigation) if my 
> > wedding 
> > > photographs, taken by a commercial photographer, were to be 
> > > exhibited, sold, or even shown to anyone else without my 
> > > consent.  Does this affect first amendment protection with 
> > respect 
> > > to 
> > > discrimination against purchasers?
> > > 
> > > At 11:26 AM 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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