Elane Photography v. Willock

[Volokh, Eugene]

            So if you were a speechwriter, and you refused to write speeches for (say) Scientologists, you could be forced to do so, since the words you write would come out under someone else's name?  That doesn't seem quite correct to me, but perhaps I'm mistaken.

            Note also that in Wooley, it seems to me very clear that the Maynards would not have been understood by anyone as holding themselves as the authors or even as endorsers of "Live Free or Die."

            Finally, to answer Bill's quaere, the New Mexico photographer did say that she was refusing to photograph weddings not recognized under state law, and there was no reason to doubt that.  But the court concluded that this didn't matter, since her action still constituted sexual orientation discrimination.

            Eugene

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of William Funk
Sent: Wednesday, December 16, 2009 2:39 PM
To: 'CONLAWPROFS professors'
Subject: RE: Elane Photography v. Willock

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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