Elane Photography v. Willock

[William Funk]

I'm in the middle of grading ConLaw exams, so I'll bite.

It seems to me that there is a difference between a person who writes what
he/she wants and the product is published under the person's name and a
person who holds him/herself out to write what others what him/her to write
for them and which is not published under the author's name.  Compelled
speech in the first category certainly runs afoul of the 1st Amendment, but
it is less clear in the second category because the speech the person does
not wish to be identified with is not, in fact, identified with that person.


The wedding photographer does not, in my mind, clearly fall into either
category, because a wedding photographer does in fact identify him/herself
as the photographer for the photographs.  

Ultimately, to the extent that the compelled speech doctrine rests upon how
readers/viewers will perceive the work - as representing the views of the
creator of the work - the doctrine must be applied contextually and may end
up as muddled as the endorsement doctrine under the Establishment Clause.  

My daughter is a wedding planner, and I would imagine that she would violate
a law similar to New Mexico's if she refused to plan a same-sex wedding
(where such a wedding was lawful at least) [Quaere: what if the New Mexico
photographer refused to photograph weddings not recognized under state law
(polygamous, incestuous, age disqualified, same-sex)?].  I can assure you
that her planned weddings are works of art.  But then there are the
caterers, can they discriminate on the basis of who is getting [legally]
married?  

Bill Funk

 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, December 16, 2009 2:02 PM
To: 'CONLAWPROFS professors'
Subject: Elane Photography v. Willock

 

A New Mexico trial court has upheld the New Mexico Human Relations
Commission's decision holding that a wedding photographer violated state
antidiscrimination law by refusing to photograph a same-sex  wedding.
http://volokh.com/2009/12/16/new-mexico-trial-court/.  We talked about this
case - and the compelled speech objection raised by Elaine Huguenin - in
2008, when the Commission decision came out, and I recall that there was
some question whether wedding photography counted as expressive enough to
trigger First Amendment protection.  

 

It turns out that the trial court did not rely on this special status of
wedding photography, and handed down a decision that could equally apply to
a wide range of freelance writers and creators.  In interpreting the state
public accommodation statute, it concluded that it would apply to "film
editor[s], commercial music composer[s], commercial musician[s], graphic
designer[s] or any other creative professional[s] whose services are
available to the public."  And it rejected Huguenin's argument using
reasoning that would apply to all these speakers, plus perhaps bookstores,
movie theaters, and the like as well:  "Plaintiff is not being asked to
represent the government's position ..., nor to alter its message ....
Plaintiff's message is not and has never been about same-sex marriages.
Rather, its message is fine photography of special moments. Unlike the
parade [involved in Hurley], Plaintiff's final message is not its own.
Instead, Plaintiff is conveying its client's message of a day well spent. As
Defedant Willock states, Plaintiff is really a conduit or an agent for its
clients. As such, the Court's finding that Plaintiff cannot refuse to
photograph same-sex couples during a commitment ceremony is not an
infringement of Plaintiff's right to freedom of expression."

 

So let me ask (as I did in my posts on the Human Rights Commission
decision): Say you're a freelance writer, who holds himself out as a
business offering to perform a service. Someone tries to hire you to write
materials - press releases, Web site text, and the like - for a same-sex
marriage planning company, a Scientology book distribution company, a state
branch of the Socialist party, a company that gets its income through legal
prostitution, or whatever else. (Some jurisdictions ban discriminate based
on "political affiliation" and "source of income" as well as religion,
sexual orientation, and the like.)

 

May the government force you, on pain of damages liability, to write those
materials, even if you would prefer not to because of the sexual
orientation, religion, political affiliation, or whatever else to which the
materials would be related? Or do you have a First Amendment right to choose
which words you write and which you decline to write?

 

Eugene

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