Elane Photography v. Willock

Wed Dec 16 17:39:05 PST 2009

There may be more in the way of analogous situations from other fields. 
How analagous, I leave to you.

Attorneys, for example, are supposed not to turn down clients who need 
representation because they disagree with the client's positions. Thus 
even neo-Nazis are not only entitled to representation in criminal 
court, but they receive it, if not from the private bar, then from the 
public defender, who doesn't have a lot of choice.

Must a private attorney represent the neo-Nazi?

I don't think so. The out-of-sympathy attorney may figure that s/he 
wouldn't do a bang-up job.

I know a woman who is a criminal defense attorney. She declines 
rape-case defense work. She'd been raped, she confided. Force her to 
defend? I don't think so. Too personal.

Wedding photographers can take either great or not so great photographs 
of a wedding. They may be aware of how their photographic efforts are 
likely to turn out, or they may be surprised. My guess is that a 
considerable sympathy for the event plays a strong role in the 
photographic outcome. Wedding clients want to be seen at their best, 
along with their friends. A professional photographer who is not in 
sympathy with the proceeding may not take the time, trouble, and effort 
to find out who the couple are and who they would like to be 
photographed with. The photographer may miss a lot of nuance for lack of 
empathy. It would be a mistake, I should think, to hire the wrong 
photographer for the wrong wedding.

Perhaps a better solution to this problem (I hate to avoid legal issues, 
don't you?) would be for the photographer to find out a bit about the 
upcoming celebration and suggest a colleague who'd love to do that work 
and who would likely do a better job. But to force the wrong 
photographer to photograph the celebration in question seems worse than 
wrong, more like a blunder.

In many fields, the best artisans, or artists, contribute a strong 
element of their creative selves to their work, especially those who 
deal closely with people, such as many attorneys, probably a good many 
physicians, and perhaps event planners, photographers, cake-designers, 
custom-tailors, and so on. How well would an NFL coach do if he decided 
he didn't like one race or another?

Which raises a concern. What about those advertisements (which I haven't 
heard referred to in a long time, but they used to exist and may still 
do) whereby the local plumber or lawn mower salesman puts in his sign, 
or newspaper ad or the yellow-pages of the phone book, that he's a 
Christian plumber, or is serving the needs of Christians. Assuming 
there's some law on that, and that plumbers are less artistic than 
wedding photographers, would the law on this bear on the topic under 
discussion?

rs

Volokh, Eugene wrote:
>
> 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 1^st 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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