Elane Photography v. Willock

Volokh, Eugene VOLOKH at law.ucla.edu
Wed Dec 16 17:06:39 PST 2009


            Isn't this asking a bit much of the photographer?  I doubt that Elaine Huguenin was ever asked to photograph a marriage that was visibly polygamous, incestuous, or age-disqualified; certainly the other side introduced no evidence that she had.  She apparently photographed all the legal marriages she was asked to photograph, and none of the illegal ones she knew of.

            But in any case, that's not terribly important to the First Amendment compelled speech question, since my view is that a wedding photographer should have the right to refuse to photograph any wedding he wishes - for instance, an interfaith wedding, or a wedding of someone who is divorced (even in a jurisdiction that bans marital status discrimination), or whatever else.  And it seems to me that the distinction of Wooley isn't really that helpful here.  Bill's claim, as I understand it, is that there's no speech compulsion when the speech isn't likely to be attributed to the complaining party - but Wooley suggests that this isn't so.  And here the case is if anything stronger than in Wooley, because here (unlike either in Wooley or PruneYard) someone is being compelled to create speech and not just to tolerate someone else's speech on his property.  (The First Amendment discussion in PruneYard begins with "Appellants finally contend that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.")

            Finally, whatever one might say about the "open to the public" theory, surely the shopping center in PruneYard was open to the public in a very different way than Elane Photography was open to the public.  PruneYard's real estate was "open to the public to come and go as they please"; Elane offered her services to the public, but the services were still the labor of her own hands and mind.  It seems to me that compelling a creator to create expression, as I mentioned, is quite different from compelling a property owner to allow expression on his property.

            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 4:52 PM
To: 'CONLAWPROFS professors'
Subject: RE: Elane Photography v. Willock

>From the court's opinion, the photographer said she photographed "traditional weddings" and that she did not discriminate on the basis of sexual orientation but on the basis of "marriage".  I nowhere find an argument that she would not photograph any non-lawful marriage.  Rather she said she opposed same sex marriages and did not suggest any other type of marriages that she would not photograph.  Had the lawful versus non-lawful marriage argument been made, the case might have come out differently.  Imagine she refused to photograph a nude marriage and the couple (heterosexual) was black.  Would that be racial discrimination?
As for Wooley v. Maynard, the offense there was not compelled speech but compelled carrying of someone's else's speech.  As the Court said, he was compelled to be "a mobile billboard for the State's ideological message."  Whatever is involved in the New Mexico case, it's not that.  The New Mexico case is much more like Pruneyard Shopping, which distinguished Wooley, and was decided on the basis that it was a business open to the public  and that the views the state required the mall to allow to be expressed  would "not likely be identified with those of the owner."
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 2:55 PM
To: 'CONLAWPROFS professors'
Subject: RE: Elane Photography v. Willock

            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
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