Compelling press release writers to write things they don't want to write

[Volokh, Eugene]

        I much appreciate Bill's careful response.  I think that on the facts, it's hard to see how a reasonable person would likely say "Oh, that wedding singer approves of the propriety and suitability of what he is singing," but when asked whether the wedding photographer endorses the message of beauty and gloriousness in the photos she's making, would say, "Nah, she's just the hired help."  Both are hired professionals who routinely do these kinds of tasks.  Both are also creative artists who choose how to express the material they're hired to express.

        But let me move on, as Bill did (at my request) to the First Amendment issue.  Bill would say that it's not "compelled speech" for First Amendment purposes if the wedding singer is compelled to sing songs, if the photographer is compelled to create photographs, or if professional writers and speakers -- such as public relations people -- are compelled to compose and say statements.

        My question:  How can it be that requiring someone to have an unobscured slogan on his license plate is "compelled speech," but compelling someone to actually speak (as in the p/r example) or write or sing or create other forms of expression is not "compelled speech"?  What is it that the compelled speech doctrine is trying to prevent here?  I had thought that it was trying to prevent the interference with "freedom of mind" involved when someone is required to say something he doesn't believe; and that while an emphasis on what *others* would think might be relevant in cases where the only issue is tolerating speech on your property (PruneYard), that is not dispositive when someone is actually being required to express something.  I would think that requiring someone to write a press release, or sing a song would be at the core of this interference of freedom of mind, regardless of whether he's allowed to do this purely anonymously, so no-one connects him with the speech.  Am I mistaken, and, if so, what does that tell us about the "freedom of mind" rationale, about Wooley, and about the notion of the prohibition on compelled speech generally?

        Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of William Funk
> Sent: Thursday, December 17, 2009 12:49 PM
> To: 'CONLAWPROFS professors'
> Subject: RE: What about a singer?
>
> 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
>
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