What about a singer?

[Rosenthal, Lawrence]

Professor Somin is quite right to take me to task for using the phrase "common carrier."  At least when used as a term of art in the law, the phrase does not describe photographers.  I had intended to use the phrase in a more imprecise sense.  At least for photographers who are properly characterized as providing a "public accommodation" within the meaning of antidiscrimination laws such as New Mexico's, I used the concept to refer to photographers who ordinarily make themselves available to all customers, without exercising any meaningful discretion in the manner of artists who exercise substantial discretion when deciding what commissions they will accept.
 
That said, at least doctrinally, the constitutional question does not turn on whether an antidiscrimination law compels the regulated party to engage in an activity that can properly be characterized as speech.  In Rumsfeld v. FAIR, the law schools argued that the Solomon Amendment compelled them to engage in speech because they would be required to provide military recruiters with speech-related services that are provided to other employers, such as announcements about when the military will be on campus to conduct interviews.  The Court (unanimously) rejected this argument, even while acknowledging that the Solomon Amendment compelled law schools to engage in "speech":
 
"There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse.  The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment's regulation of conduct . . . .  Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto "Live Free or Die," and it trivializes the freedom protected in Barnette and Wooley to suggest that it is."
 
Again, I am not entirely at rest about cases like this one, but I must confess some skepticism about the view that requiring a photographer to record a same-sex wedding in the same manner as she records other weddings is comparable to requiring the photographer to recite the state's own ideological message, or display it forevermore on the photographer's property. 
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Ilya Somin
Sent: Thu 12/17/2009 12:07 PM
To: Volokh, Eugene
Cc: 'CONLAWPROFS professors'
Subject: Re: What about a singer?



I should have mentioned this earlier. But I wanted to briefly challenge the claim that some have made that a wedding photographer is like a "common carrier." I think he is not.

At common law, a common carrier is a business that has a legal obligation to serve all comers, so long as they are willing to pay the asking price. Standard examples were railroads, certain shippers, and the like. Wedding photographers and other professional service-providers have no such legal obligations. They can refuse to provide services for all sorts of arbitrary reasons (even under the New Mexico law, which would still allow the photographer to refuse service because, e.g., he didn't like the groom's looks).

Usually, common carriers had that status because they were believed to have some sort of monopoly over quasi-monopoly over an important public service (e.g. - a railroad may be the only or by far the best way to travel from Point A to Point B). Some common carriers also had special government subsidies or charters. Neither rationale applies to professional service providers such as wedding photographers.

I don't think that this is necessarily crucial for a First Amendment analysis. In my view, common carrier status, even if present, does not diminish constitutional free speech rights. However, I raise this point only because some list participants do seem to believe that common carrier status makes a difference. Be that as it may, wedding photographers pretty clearly are not common carriers.

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339