Do photographers have a First Amendment right tochoosewhatthey photograph?

Rosenthal, Lawrence rosentha at chapman.edu
Fri Apr 11 16:12:38 PDT 2008


What I take from Rumsfeld v. FAIR and Pruneyard Shopping Center v. Robins -- the cases in which the Court retreated from the broadest implications of Barnette and Wooley -- is that we essentially apply a test asking if a "reasonable observer" would think that the plaintiff is being forced to endorse a message with which he disagrees.  My own reasonable observer barometer (perhaps I need to have it recalibrated) tells me that we usually think that freelance writers endorse the message contained in their publications, and only take on work that they think they can do well because of some sort of intellectual sympathy for the project.  I know a few freelance writers, and I think they would pretty vigorously contest the claim that freelancers "hire their services out pretty much to all comers."  My reasonable observer barometer reads most wedding photography differently.  We may think that the photographer endorses the aesthetic sensibility of the pictures, but not necessarily the ideology behind the wedding itself.  To my knowledge, people do not generally want their wedding photographers be coreligionists on the view that a coreligionist is more likely to do justice do wedding photography.  Still, I am happy to admit that this seems like a close and difficult case.
 
That said, I think it is important not to conflate the photographer's compelled speech claim with what may be an ideological objection to being compelled to associate with people whose lifestyle s/he finds repellent.  That, however, is not a compelled speech claim, but a compelled association claim, and the cases upholding the antidiscrimination laws when applied to commercial relationships rejects that kind of compelled association claim.
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Fri 4/11/2008 2:21 PM
To: conlawprof at lists.ucla.edu
Subject: RE: RE: Do photographers have a First Amendment right tochoosewhatthey photograph?




        I much appreciate Larry's candor and thoughtfulness here, but
I'm not sure why the freelance writer is "surely" protected while the
matter is less clear as to the photographer (especially one who styles
herself, let's assume accurately, as taking a photojournalist approach).
Both staging of photographs and the selection of which candid shots to
take strike me as pretty expressive.  As someone else pointed out,
that's one reason that people pay lots of money for wedding photography.

        What are the possible other distinctions?

        1.  Larry suggests that wedding photographers may not make a
"personal ideological statement in their pictures," but freelance
writers often don't make personal ideological statements in their
pictures; they hire out their services to express the ideologies of
others.  Yet I agree that "surely" the freelance writer must be free to
choose *not* to express those views that he finds repugnant enough.  Why
wouldn't the freelance photographer have the same right?

        2.  The common carrier distinction doesn't work here, I think,
because freelance writers and freelance photographers both equally hire
their services out to pretty much all comers.

        3.  Likewise with the "nondiscrimination mandate," which applies
equally to the hypothetical freelance writer and the hypothetical
freelance photographer?

        So what then would the difference be, if there is one?

        Eugene

> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> Sent: Thursday, April 10, 2008 5:07 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: RE: Do photographers have a First Amendment
> right to choosewhatthey photograph?
>
> I suspect that most cases involving compelled artistic
> expression would fall on the Wooley/Barnette side of the
> line, surely including the case of the freelance writer. 
> And, in candor, I must admit that I don't know how the
> commercial photographer case would come out.  But just as the
> Court thinks that law school recruiting offices are a sort of
> "common carrier" in which compelled inclusion does not really
> signal ideological support for those who are included, I
> think there is at least a plausible case to be made that many
> commercial wedding photographers are also essentially common
> carriers (perhaps some of the more arty the high-end ones
> present a different case).  Until this thread, I have to say
> that it had never occurred to me that wedding photographers
> are making any kind of personal ideological statement in
> their pictures, and Rumsfeld v. FAIR makes clear that there
> are some forms of compelled expression that do not really
> signal ideological support, and for that reason do not run
> afoul of Wooley and Barnette. 
> 
> To be fair, there are those who think that the license plate
> in Wooley did not signal ideological support for the New
> Hampshire motto.  If that's right, it just highlights the
> tension between Wooley and Rumsfeld.  But since neither case
> has been overruled, I think the law at present accommodates
> that tension by deeming inclusion as part of a
> nondiscrimination mandate in commercial relations to be
> different from the more personal statement at issue in the
> "Live Free or Die" case.
> 
> Larry Rosenthal
> Chapman University School of Law
> --------------------------------------------------
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Thu 4/10/2008 4:50 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: RE: Do photographers have a First Amendment
> right to choosewhatthey photograph?
>
>
>
>
>         Well, the Solomon Amendment required only that
> schools let people on their property, plus convey some
> minimal factual information (recruiters are in room 123 at 4
> pm).  That seems to me quite different from requiring someone
> to create an artistic work.
>
>         As to the compulsion not being likely to lead anyone
> to believe that the compelled expression signals ideological
> support, surely that's true of "Live Free or Die" on license
> plates, too (or certainly would have been before Wooley held
> that people could tape it over).  So I don't think that takes
> care of the matter.
>
>         Larry, I take it that your reasoning would apply
> equally to my hypothetical of a freelance writer who is
> ordered to pay $6600 because he refused to write copy for the
> Scientologists or for a political organization of which he
> disapproves, yes?
>
>         Eugene
>
> > -----Original Message-----
> > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> > Sent: Thursday, April 10, 2008 4:46 PM
> > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > Subject: RE: RE: Do photographers have a First Amendment right to
> > choose whatthey photograph?
> >
> > Perhaps I missed it in this long thread, but I believe that
> no one has
> > yet mentioned Rumsfeld v. FAIR.  Under that opinion, even when the
> > government compels expression as part of an
> antidiscrimination mandate
> > (in that case schools were required to announce the availability of
> > military recruiters on campus in a nondiscriminatory fashion), when
> > the compulsion would not be likely to lead anyone to
> believe that the
> > compelled expression signals ideological support for those
> who must be
> > included under the nondiscrimination mandate, there is not
> a violation
> > of the rule against compelled speech.  While I am willing
> to believe
> > that many artistic endeavors signal some measure of ideological
> > sympathy for the subject, I am not sure that commercial wedding
> > photography is quite the same as a commission to paint a portrait,
> > say, of General MacArthur striking a heroic pose.  When I
> see pictures
> > of a Jewish wedding, for example, it does not occur to me that the
> > photographer must have some sort of sympathy with the tenets of the
> > Jewish religion.  To be sure, I don't think that a compelled speech
> > claim in such circumstances is implausible, but I don't
> think it is a
> > slam dunk either.
> >
> > Larry Rosenthal
> > Chapman University School of Law
> >
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> > Sent: Thu 4/10/2008 4:29 PM
> > To: conlawprof at lists.ucla.edu
> > Subject: RE: RE: Do photographers have a First Amendment right to
> > choose whatthey photograph?
> >
> >
> >     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/
> >       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
> >       > > >        _______________________________________________
> >       > > >        To post, send message to
> Conlawprof at lists.ucla.edu
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> >       > > >
> >       > > >       
> __________________________________________________
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