Elane Photography v. Willock

[Mark Tushnet]

I'll give the same response as to Steve Jamar:  Ask your hair stylist whether hair styles "tell a story."

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Wallace, E. Gregory
Sent: Wed 12/16/2009 10:26 PM
To: CONLAWPROFS professors
Subject: RE: Elane Photography v. Willock
 
Because photography "tells a story" in a way that hair styling does not? Serious photographers--whether professional or amateur, whether photographing news, portraits, weddings, nature, or landscapes--have something to say with their images. Ask them.

To put it in First Amendment terms, because there's an intent to convey a particularized message and the likelihood that the message will be understood. 

The better question is, Does the Free Speech Clause, which protects nude dancing, also protect square dancing?

By the way, nice photos, Steve!

Greg Wallace
Campbell University School of Law   



-----Original Message-----
From: Mark Tushnet [mailto:mtushnet at law.harvard.edu]
Sent: Wed 12/16/2009 9:58 PM
To: Wallace, E. Gregory; CONLAWPROFS professors
Subject: RE: Elane Photography v. Willock
 
I've raised this before, but will do it again here:  In what sense is a photograph "speech" covered by the First Amendment?  Or, perhaps more precisely, what's the account of why a photograph is speech covered by the First Amendment that would not also be an account of why we need to have a First Amendment argument to explain why it's constitutionally permissible to require that people obtain licenses to cut hair ("be a hair stylist")?

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Wallace, E. Gregory
Sent: Wed 12/16/2009 9:36 PM
To: CONLAWPROFS professors
Subject: RE: Elane Photography v. Willock
 
The problem here may be not only that we misunderstand the law, but that we misunderstand photography. No one who has ever done serious photography would claim that professional wedding photographers are not engaged in artistic expression because they're acting as "common carrier[s] without exercising substantial artistic discretion" or because they "think that they are artists, but it would be hard to make that case for merely wedding photographs." If you don't believe me, pick up a camera and try to take photographs that people will pay money for.

Greg Wallace
Campbell University School of Law


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Rosenthal, Lawrence
Sent: Wed 12/16/2009 8:49 PM
To: Volokh, Eugene; CONLAWPROFS professors
Subject: RE: Elane Photography v. Willock
 
Many thanks to Professor Volokh for updating us on the status of this case.  I will likely use this case when I next teach Civil Rights.  Nevertheless, I remain at least tentatively of the view that I expressed when we last discussed this issue.  A photographer who essentially acts as a common carrier without exercising substantial artistic discretion is not, I think, being compelled to convey any message of approval of the lifestyle of her subjects by photographing a same-sex marriage.  To be sure, Wooley took a pretty broad view of that question, but in that case, drivers were forced to display the state's message on their own vehicles.  In cases like this one, the photographer need not retain display any photographs of which she disapproves on her own property.  As far as I can tell, the photographer need not even print on the photos anything indicating the name of the photographer -- at least by looking at the picture, there would be nothing to indicate who took it.  Tha!
 t's not much of an endorsement by the photographer of same-sex marriage.  Moreover, the more recent decisions in PruneYard Shopping Center v. Robins and Rumsfeld v. FAIR take a somewhat more realistic view of the matter than Wooley, asking whether, when a property own is compelled to host an individual engaged in expressive activities, there is a realistic likelihood that others will understand this as an endorsement of the guest's views.  The mere act of taking a photograph for money does not strike me as an endorsement of the views or lifestyle of the subject.  Would Professor Volokh, I wonder, take the same view if a photographer at a passport photo shop refused to photograph gay couples seeking passport photos because that might be thought an implicit endorsement of the gay lifestyle?
 
That said, I agree that these are difficult cases, and I would want to listen very carefully to the testimony of the photographer before coming to rest in a case like this one.  Surely Professor Volokh is right that many kinds of artists would be thought to implicitly endorse the message of art that they might be "compelled" to create under an antidiscrimination law,  I'm just not sure that I am willing to say that is going on in the case of the common-carrier wedding photographer.
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Wed 12/16/2009 5:06 PM
To: 'CONLAWPROFS professors'
Subject: RE: Elane Photography v. Willock



            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 h!
 as 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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