Fwd: Elane Photography v. Willock

[Robert Sheridan]

Could the issue be better framed in terms of 'conscience' rather than
'expression?'

The FA protects matters of conscience, no matter how expressed, or not
expressed, but submitted to.  The flag salute in Barnette, for example.
High-school speakers imposing their religious views on passive, captive
audience students at graduation.  Forcing them to listen.  Suggesting
that there is a prescribed orthodoxy that forces them to submit.

Seems to me that if government seeks to force performance of a duty to
which one objects as a matter of conscience, it is on thin FA ice.
Exception?  Certainly.  Some licensed professionals, but not all?  I
wouldn't require state licensed doctors and nurses who conscientiously
object to assisting in abortion procedures to so perform, certainly not
at a private hospital, but what about at a city's general hospital?
Exceptions to the exception?  I could think of examples I won't bore you
with, and so forth going down the line.  There must be a place where we
let the individual decide, not government, even as to attorneys,
doctors, nurses and wedding photographers.   Call them conscientious
objectors and require them to state their position in advance, so far as
possible (it may not be, as who can imagine all possible eventualities
in the broad field of conscience?)

Intrude enough on a person's conscience and you intrude on his/her FA
rights, I should think.

rs

Steven Jamar wrote:
>
>
> ---------- Forwarded message ----------
> From: *Steven Jamar* <stevenjamar at gmail.com 
> <mailto:stevenjamar at gmail.com>>
> Date: Wed, Dec 16, 2009 at 10:05 PM
> Subject: Re: Elane Photography v. Willock
> To: "Wallace, E. Gregory" <wallace at webster.campbell.edu 
> <mailto:wallace at webster.campbell.edu>>
>
>
> Case in point -- here are wedding pictures I took of my niece's 
> wedding in October
> http://www.facebook.com/album.php?aid=117997&id=717958043&l=d95e598fae 
> <http://www.facebook.com/album.php?aid=117997&id=717958043&l=d95e598fae>
>
> These were taken with a very good (not quite professional grade) 
> camera with me just there taking pictures -- not the same access or 
> power as the professional photographers.  And these are just a subset 
> of the hundreds I took (possible now due to digital cameras). And 
> these were adjusted in iPhoto for exposure, cropping, color in some 
> instances, etc.
>
> They are better than most of the pictures taken by others -- but far 
> below professional grade.
>
> And even so, there was planning, composing, selection, etc., to tell 
> the story of the wedding -- leaving the high quality picts to the 
> professionals.
>
> Can a photographer refuse to do a wedding for no reason at all? 
>  Surely.  For a material reason (not paid enough)? Surely.  For a 
> subjective reason non-protected reason (I just don't get along with 
> the bride; artistic differences, etc.).  Surely.
>
> But what about for a prohibited reason (race, or religion or other 
> protected status)?  
>
> I'm very troubled both by allowing discrimination by service providers 
> and by requiring providers of artistic/expressive services to provide 
> services to those they dislike for moral reasons in circumstances 
> where the result would essentially be compelled expression.  Here, the 
> photographers would be compelled to show something they don't believe 
> in -- gay marriage. So there is a legit speech aspect that does not 
> exist, perhaps, or does not exist in a legitimate way (race and 
> religion are not the same perhaps as beliefs being shown) in other 
> types of discrimination.
>
> Troubling.
>
> Steve
>
>
> On Wed, Dec 16, 2009 at 9:36 PM, Wallace, E. Gregory 
> <wallace at webster.campbell.edu <mailto:wallace at webster.campbell.edu>> 
> wrote:
>
>     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
>
>
>
> -- 
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social 
> Justice (IIPSJ) Inc.
>
>
>
> -- 
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social 
> Justice (IIPSJ) Inc.
> ------------------------------------------------------------------------
>
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