What about a singer?

[William Funk]

Eugene, under the wedding singer hypo, you posit that a reasonable person
would not think the singer approves of what he is singing.  That to me is
very doubtful.  I think most persons would think that a singer (even a hired
singer) approves of the songs he sings.  But, if I must accept your factual
premise, then I would indeed say he has no first amendment right to refuse
to sing.  
But what if he gets to choose the songs he sings at the wedding he
disapproves of?  The photographer presumably chooses what pictures to take
at the wedding she disapproves of (at least that's been the case in every
wedding I've ever attended - the photographer bosses everyone around).  I
assume, Eugene, you still think that's compelled speech.  And I would too,
if a reasonable observer would perceive the singer or photographer as
supporting same sex marriages.  
Similarly, I have no problem with requiring the public relations firm to
provide "public relations" services to any client regardless of the client's
sexual orientation or religion.  
To respond to David Bernstein's query, I'd apply my principled methodology
without regard to who is getting married or the sexual orientation of the
person compelled to provide the services.  This is about Free Speech and its
limits.
Finally, I have query.  Could a wedding photographer advertise that she
specializes in traditional weddings?  Christian weddings?  Jewish weddings?
Alternative weddings?  Is the advertising of a special expertise, so long as
the person stands ready to perform services for any wedding, acceptable or
discriminatory?  I think it should be OK.  
I continue to think the real constitutional issue here is not Free Speech
but the question of the power of government to force a person as a condition
of practicing a particular profession to engage in activities that person
deeply disapproves of.  
Bill Funk


From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, December 17, 2009 11:54 AM
To: 'CONLAWPROFS professors'
Subject: RE: Elane Photography v. Willock

            So, Bill, you're saying that the singer can indeed be forced to
sing wedding songs he disapprove of, yes?  Would you take this to text as
well?  Say that a freelance writer is approached by the Church of
Scientology, being asked to write press releases for it.  He thinks the
religion is a sham and a scam, and doesn't want to write words praising it
or placing it in a positive light; but assume state law treats this decision
- when he's happy to write words praising other customers, even ones that he
actually doesn't enthusiastically support - as religious discrimination.
May he be forced (on pain of legal liability) to write a press release that
he doesn't want to write?

            I would think that the "individual freedom of mind" protected by
the compelled speech doctrine (see Riley and Wooley) would be squarely
violated by such compulsions to say things you don't want, even if no-one
would attribute them to you.  It's certainly more implicated than in Wooley,
in which no rational person would have attributed the license plate motto to
Wooley, either.  And while I agree that the attribution question is
mentioned in PruneYard, that strikes me as hard to divorce from the fact
that in PruneYard all the shopping mall owner had to do was allow certain
speakers on his commercial real estate.  Surely the freedom of mind is much
more implicated when someone is actually required to write, sing, or
photograph than when someone is required to let speakers onto his property
(or for that matter when someone is just required to provide glassware).  Or
is freedom not to speak, write, or create irrelevant, so that all that
matters is how others will perceive you?

            Eugene 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of William Funk
Sent: Thursday, December 17, 2009 11:44 AM
To: 'CONLAWPROFS professors'
Subject: RE: Elane Photography v. Willock

I'm willing to concede for the purposes of argument that the wedding
photographer case is distinguishable from Pruneyard (because Pruneyard
didn't require the mall owner to actually do anything, but merely refrain
from doing something), but I would also suggest that Wooley is
distinguishable (because the photographer is not required to carry and
exhibit the state's message).  That said, the question still remains how to
resolve this particular case.  I'm not sure, but I assume Eugene would not
say that the caterer who supplies the glassware for the wedding has a 1st
Amendment Free Speech defense to refuse to cater a same sex (or
inter-racial) wedding, notwithstanding that person's deeply held, perhaps
religiously based, belief that it is wrong and/or sinful to assist in such a
wedding.  Then this becomes likes the pharmacist who does not want to
dispense the morning-after pill despite a state law requiring pharmacists to
fill prescriptions.  There is something upsetting about requiring a person
to act contrary to their beliefs simply because they have entered a
profession that generally serves the public.  But there is a difference
between what is upsetting and what is unconstitutional.  
Between the glassware caterer and the photographer, however, there are a
host of other potential "creative artists" involved - the wedding planner,
the florist, the musicians (who do not even choose what music they play) -
all of whom provide labor of their own hands and minds.  Do they all have a
Free Speech defense because their support of the wedding of which they
disapprove somehow involves creative or artistic skills?  I think not.
Pruneyard explicitly and Hurley implicitly (if not explicitly) turn on how a
reasonable viewer would perceive the action in question.  If the viewer
would identify the "message" in question as being supported by the person
who objects to that message, then the governmentally forced association that
would lead to that identification would be unconstitutional.  This is a
principled, if fuzzy, basis for protecting a First Amendment right against
governmentally compelled "speech" and it really does not turn on the
creativeness of the person being compelled.  For example, imagine an
Episcopal minister who refuses to perform a same sex wedding (although the
Episcopal church allows for same sex marriages).  In performing the
marriage, he/she is not acting creatively, not engaging in protected speech
activity, but a reasonable observer would, I believe, think that he/she
approved of the marriage by reason of performing it.  
Bill Funk
[Now back to grading ConLaw exams]

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, December 16, 2009 5:07 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 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