FW: Elane Photography v. Willock

Wed Dec 16 17:00:49 PST 2009

Two observations about this exchange:  First, the photographer and the press-release writer are differently situated for a reason not yet mentioned.  If the writer fears being sued for refusing to write, she can simply write a quick draft that the other party will surely find unacceptable.  They will refuse payment and hire someone else.  If the photographer did this, the wedding would be over and her work could not be replaced, causing significant harm.  
The photographer, on the other hand, could simply have said she was booked for that date. I suppose the writer could also decline without having to give an ideological reason.  So what is really at stake in these cases?
Second, it seems to me that, behind the fine doctrinal points, the dispute here is over how to balance or reconcile Firat Amd and Fourteenth Amd values. Is it not relevant that the EP clause comes later?  Was the First Amd not part of what the 14th Amd amended?
This does not mean that anti-discrimination values automatically trump free speech values; but it does make the converse proposition hard to argue.
Daniel Hoffman

--- On Wed, 12/16/09, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:

> From: Volokh, Eugene <VOLOKH at law.ucla.edu>
> Subject: FW: Elane Photography v. Willock
> To: "'CONLAWPROFS professors'" <Conlawprof at lists.ucla.edu>
> Date: Wednesday, December 16, 2009, 7:08 PM
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> Paul, it seems to me, is proposing a distinction quite
> different from the one
> that Bill was proposing (which went to whether the speech
> would be attributed
> to the person whose participation is being
> compelled).  But let me turn to
> Paul’s distinction.  It can’t, I think, focus on
> the “commercial
> transaction” question, since speech writers, composers,
> press release writers,
> and others all work for money. 
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>            
> If the focus is on “open to all comers who want to
> pay,” let’s consider such a
> business:  Someone who writes press releases for
> nearly everyone who comes
> in the door.  Nearly, but not entirely:  He
> doesn’t want to write
> press releases for the Scientologists, or the Nazis, but
> the local public
> accommodation discrimination law bans religious and
> political affiliation
> discrimination (see, for instance, the D.C. law). 
> Would we say that he
> therefore must write a press release that he disapproves
> of? 
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>            
> Alternatively, one might argue that wedding photography is
> just unusually
> nonexpressive, perhaps as nonexpressive as is simply
> printing something from
> camera-ready copy.  That is not the New Mexico
> court’s rationale;
> the court’s rationale is closer to Bill’s, and the
> court even mentions that the
> statute might cover composers, graphic designers, and other
> “creative
> professionals” (which would presumably include press
> release writers), which
> surely are quite expressive.  But in any event, this
> strikes me as hard to
> defend on the facts:  People pay many thousands of
> dollars to wedding
> photographers partly because there is a good deal of
> artistic judgment involved
> in choosing and staging photographs that convey the
> aesthetic message one wants
> (which is that the wedding is a beautiful and holy
> event).  Certainly
> lesser creative works than that would generally be
> protected by the First
> Amendment from speech restriction – it seems to me that
> there is enough
> creativity here that compelling its production should be
> treated as a speech
> compulsion. 
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>            
> Eugene 
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> From: Paul Finkelman
> [mailto:paul.finkelman at yahoo.com] 
> 
> Sent: Wednesday, December 16, 2009 3:54 PM
> 
> To: Volokh, Eugene; CONLAWPROFS professors
> 
> Subject: Re: Elane Photography v. Willock
> 
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> is
> there a difference between
> speech writing (a political act?) and merely the commercial
> transaction of
> taking pictures (I realize that some photographers think
> that they are artists,
> but it would be hard to make that case for merely wedding
> photographs). 
> Perhaps the analogy would be to printing.  Would
> someone who prints
> wedding invitations -- even artistic ones -- be able to
> make the free speech to
> NOT make them for a same sex union.  Seems unlikely
> under this
> ruling.  Isn't the photographer just like any
> other business, open to all
> comers who want to pay, and that is different, perhaps,
> from speech writers? 
> 
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> ----
> 
> Paul Finkelman
> 
> President William McKinley Distinguished Professor of Law
> 
> Albany Law School
> 
> 80 New Scotland Avenue
> 
> Albany, NY 12208 
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> 
> 518-445-3386 (p)
> 
> 518-445-3363 (f) 
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> paul.finkelman at albanylaw.edu
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> www.paulfinkelman.com
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> From: "Volokh,
> Eugene"
> <VOLOKH at law.ucla.edu>
> 
> To: CONLAWPROFS professors
> <Conlawprof at lists.ucla.edu>
> 
> Sent: Wed, December 16, 2009 5:54:31 PM
> 
> Subject: RE: Elane Photography v.
> Willock 
> 
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>            
> 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. 
> 
>            
>  
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>            
> 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.” 
> 
>   
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>            
> 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. 
> 
>   
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>            
> Eugene 
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> 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
> 
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> 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 ... 
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