Do photographers have a First Amendment right to choose what they photograph?
Volokh, Eugene
VOLOKH at law.ucla.edu
Thu Apr 10 16:29:20 PDT 2008
So, Malla, just to be clear: I take it that you'd likewise say that
a freelance writer can be compelled to write copy for the
Scientologists, for the Klan, or for other groups whose religious views
or political affiliations he disapproves of, if his policy is generally
to take all jobs with a few exceptions. No compelled speech problem
here -- the government can require this person to write this copy,
despite his objections to writing the words. Right?
Eugene
________________________________
From: Malla Pollack [mailto:mallapollack at yahoo.com]
Sent: Thursday, April 10, 2008 3:12 PM
To: Ilya Somin
Cc: Janet Alexander; Volokh, Eugene; conlawprof at lists.ucla.edu
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/
<http://mason.gmu.edu/%7Eisomin/>
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/
<http://mason.gmu.edu/%7Eisomin/>
> 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
> > > _______________________________________________
> > > To post, send message to Conlawprof at lists.ucla.edu
> > > To subscribe, unsubscribe, change options, or get
> > password, see
> > >http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > >
> > > Please note that messages sent to this large list
> cannot be
> > >viewed as private. Anyone can subscribe to the list and
read
> > messages>that are posted; people can read the Web archives;
and
> > list members can
> > >(rightly or wrongly) forward the messages to others.
> > >
> > >
> > >
> > > __________________________________________________
> > > Do You Yahoo!?
> > > Tired of spam? Yahoo! Mail has the best spam
> protection
> > around> http://mail.yahoo.com
> > >
> > >_______________________________________________
> > >To post, send message to Conlawprof at lists.ucla.edu
> > >To subscribe, unsubscribe, change options, or get password,
see
> > >http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > >
> > >Please note that messages sent to this large list cannot be
> > viewed
> > >as private. Anyone can subscribe to the list and read
messages
> > that
> > >are posted; people can read the Web archives; and list
members
> > can
> > >(rightly or wrongly) forward the messages to others.
> >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password,
see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot be
> viewed
> > as private. Anyone can subscribe to the list and read
messages
> > that are posted; people can read the Web archives; and list
> > members can (rightly or wrongly) forward the messages to
others.
> >
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password,
see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be
viewed
> as private. Anyone can subscribe to the list and read
messages
> that are posted; people can read the Web archives; and list
> members can (rightly or wrongly) forward the messages to
others.
>
>
>
>
>
> __________________________________________________
> Do You Yahoo!?
> Tired of spam? Yahoo! Mail has the best spam protection
around
> http://mail.yahoo.com
__________________________________________________
Do You Yahoo!?
Tired of spam? Yahoo! Mail has the best spam protection around
http://mail.yahoo.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20080410/3dc895ea/attachment.htm
More information about the Conlawprof
mailing list