Compelled speech, artistic freedom, antidiscrimination law, and photograp...
DavidEBernstein at aol.com
DavidEBernstein at aol.com
Fri Feb 22 13:16:40 PST 2008
Without having closely examined caselaw on this, my guess would be (1) the
defendant can be compelled to photograph the ceremonies; (2) the defendant
cannot be compelled to cease from adding to every picture via digital software
the disclaimer "Elane Photography find same-sex commitment ceremonies to be
immoral, and only took this photo because the government required it to."
In a message dated 2/22/2008 4:11:04 PM Eastern Standard Time,
VOLOKH at law.ucla.edu writes:
Willock v. Elane Photography is a New Mexico Human Rights
Commission proceeding in which Vanessa Willock is complaining about a
husband-and-wife photography company's refusal to photograph Willock's
same-sex commitment ceremonies; Willock argues that this refusal
violates state law, which bars sexual orientation discrimination in
public accommodations. Part of Elane Photography's argument is a state
RFRA religious exemption argument that we discussed on Religionlaw. But
part is an artistic freedom / compelled speech argument.
Elane Photography argues as follows: The bulk of the
photographic work done by the company is done by co-owner Elaine
Huguenin (though she subcontracts some of the work some of the time).
Huguenin's photographs are works of art, which embody a wide range of
artistic choices (she says she takes a "photojournalist" approach,
rather than just doing normal staged photos). She exercises political
judgment in deciding what to photograph (for instance, she refuses to
make photographs that put horro films in a positive light, or to take
photographs that positively portray abortion, pornography, or nudity, as
well as same-sex marriage), as well as artistic judgment in deciding how
to photograph. Requiring her to photograph an event that she doesn't
want to photograph is thus an unconstitutional speech compulsion.
The complicating factor, of course, is that Huguenin wouldn't be
required (even if the Commission rules in Willock's favor) to display
same-sex wedding photographs on her Web site, or include them in some
art gallery exhibition. Rather, Huguenin would simply be required to
*create* photos of an event she disapproves of, and then convey those
photos to Willock, who would then display and distribute them to her
circle of friends (perhaps even without mentioning Huguenin's name).
But Huguenin is arguing that the Free Speech Clause freedom from speech
compulsions includes her freedom not to create art she disapproves of,
and not just her freedom not to display art she disapproves of.
Assume that Willock is correct as a matter of state law that
"public accommodations" covers services and not just physical places of
accommodation, and that the law thus applies to photographers. Would
the law, as applied, violate the photographer's First Amendment rights?
Or say that instead of Willock's trying to hire a photographer,
Willock was trying to hire a solo freelance writer 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. Would the law, as applied, violate the writer's First
**************Ideas to please picky eaters. Watch video on AOL Living.
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof