Compelled speech, artistic freedom, antidiscrimination law, and photograp...

[DavidEBernstein at aol.com]

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
Amendment rights?

Eugene


 



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