A commenter suggested that a hypothetical involving a photographer who refuses to photograph a pro-Nazi ceremony was an “absurd example,” apparently because of the absence of statutes that make it illegal to discriminate against Nazis.
Most jurisdictions don’t ban discrimination based on political affiliation, but some do. The D.C. antidiscrimination law to which I linked in an earlier post expressly bans discrimination based on political affiliation in public accommodations, with political affiliation defines as “the state of belonging to or endorsing any political party.” It is thus illegal to discriminate against a person in public accommodation based on his he belonging to or endorsing the American Nazi Party. Perhaps one could argue that discriminating based on a person’s Nazi ideas isn’t the same as discriminating based on political affiliation, but I doubt that this would much impress a court that concluded (as the New Mexico court did) that discriminating in favor of legally recognized weddings (which under New Mexico law must be opposite-sex weddings) constitutes sexual orientation discrimination. Virgin Islands law does the same, as does an Urbana-Champaign ordinance.
A Seattle ordinance expressly bars discrimination in public accommodations based on “political ideology.” A Madison ordinance expressly bars discrimination based on “political beliefs.” Other cities have similar bans.
The California public accommodation discrimination ban doesn’t expressly bar political affiliation discrimination, but it has been interpreted quite broadly, and has apparently led to an ACLU lawsuit against a restaurant that excluded a patron for wearing a swastika.
So bans on political affiliation discrimination in public accommodations aren’t common — but they certainly exist, and it’s impossible to dismiss hypotheticals based on them as “absurd.” And if the First Amendment is read as not protecting Elane Photography, it probably wouldn’t protect the speechwriter or press release writer who refuses to write for Nazis or Nazi events, either.
loki13 says:
1. I hate Illinois Nazis.
2. I think the trouble with this analysis is that, well, it depends on how you view wedding photogrpahy. Is it closer to freelance journalism? (Should a roman catholic writer be forced to write articles for NARAL). Or is it closer to being a waiter / auto mechanic? (Should they deny services to a black person)
I dunno. Shooting wedding photos requires judgment. But so does practicing medicine. Can hospitals refuse treatment to groups they don’t like? And so on....
IOW, I think thi is somewhat more difficult than simply announcing “photogrpahy is art!” and ending there. I’m still not sure where I fall on this divide.
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December 16, 2009, 6:08 pmSteve says:
I still don’t see how taking a picture of a Nazi is remotely the same as writing a speech on behalf of a Nazi advocating Nazi ideas.
Yeah, maybe the judge who decided the photographer decision didn’t including any reasoning to distinguish the hypothetical example of the Nazi speechwriter, but guess what, an awful lot of judges simply decide the case before them without making sure their logic applies to every single hypothetical a law professor might raise.
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December 16, 2009, 6:20 pmMalvolio says:
You don’t? Other people do.
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December 16, 2009, 6:33 pmEugene Volokh says:
Recall that wedding photography doesn’t just require the photographer — at least a competent, professional photographer — to take any old pictures of the participants. It requires her to take pictures that are celebratory of the event, and that portray it as beautiful and glorious. (Imagine what you’d think if your wedding photographer gave you pictures in which everyone was snapped at their worst rather than at their best, and in which the photographer tried to choose and stage the shots to portray the participants’ vanity, folly, and ugliness.) If she deliberately does a bad job for a Nazi wedding or an interfaith wedding or a wedding involving a divorcee or a same-sex wedding, where she would have done a good job for a wedding she approved of, that itself would likely be illegal discrimination (as well as being unprofessional).
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December 16, 2009, 6:37 pmtroll_dc2 says:
EV, what if a same-sex couple approached the photographer to have their dog photographed?
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December 16, 2009, 6:42 pmSteve says:
You don’t? Other people do.
Really? Writing and producing a propaganda film is the same thing as taking pictures in a portrait studio? Okay, chief.
Recall that wedding photography doesn’t just require the photographer — at least a competent, professional photographer — to take any old pictures of the participants. It requires her to take pictures that are celebratory of the event, and that portray it as beautiful and glorious.
I think one can acknowledge that skill and talent are required for a given job without admitting it is something deeply expressive. As someone noted in the other thread, wedding photographs pretty much all look the same. That doesn’t mean any old person can take them, but it does mean we’re not talking about Picasso here.
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December 16, 2009, 6:42 pmMichelle Dulak Thomson says:
Steve,
Would you then say that a wedding photographer in a jurisdiction that prohibits discrimination based on political party membership must photograph a wedding of two prominent American Nazis if asked to do so? If the same people were to call me to supply a string quartet for the same occasion, am I under legal obligation to take the gig? And if they request the Horst-Wessel-Lied as recessional, do I have to play it? (Leaving aside, for the moment, where the hell they’d expect me to procure a string quartet arrangement.)
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December 16, 2009, 6:54 pmrj says:
Arguing that your photographer did a bad job at your wedding seems too subjective to sue over — how well do plaintiffs fare when suing over the artistic judgment or a hired hand?
If I was the photog, I would have just done a bad job and laughed all the way to the bank... were I not Jewish and thus fearful of even going in there.
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December 16, 2009, 6:55 pmrj says:
Also, why would you want someone who hates you and everything you believe in to photograph your wedding? In order to sue a photographer? Really deep pockets there...
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December 16, 2009, 6:58 pmSteve says:
Would you then say that a wedding photographer in a jurisdiction that prohibits discrimination based on political party membership must photograph a wedding of two prominent American Nazis if asked to do so?
I don’t know if I really buy that Nazis are entitled to protection as a “political party” — I mean, maybe gay people should form the American Gay Party if it’s going to get them extra protection. But setting that aside, if you don’t have the right to say “I don’t photograph Republicans, sorry,” I don’t see why the same thing shouldn’t apply to members of even ickier political parties.
It’s a repugnant result, of course. The implication of this discussion is that people who oppose public accommodation laws in general probably should start wearing swastikas around town.
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December 16, 2009, 6:59 pmYankev says:
To put it another way, there is a big difference between the documentaries California Reich and Triumph of the Will. Why wouldn’t the same statute apply to the screen writer and cinematographer?
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December 16, 2009, 7:15 pmjosh bornstein says:
rj,
I sit as a Small Claims judge (pro tem) occasionally . . . maybe I’ve heard 200–300 cases over the years. I recall having had 4 cases where the defendant was a wedding photographer, and the main issue was: Are these images of sufficient quality to meet the general rules of acceptable work-product.? Yes, it is subjective, but that sort of line-drawing happens all the time in trials. A different judge might result in a different decision. But usually not. Usually a reasonable person can look at images and say, “Yeah, these are okay, even if not great.” Or, “God, these are out-of-focus, poorly lit, and are simply dreadful.”
One issue that worries me is when the now-happily-married Nazi couple puts up the (well-shot) photographs on their website, with prominent praise of the (Jewish, non-Nazi, whatever) photographer. I sure don’t want that sort of publicity for my own photography. Merely having the accurate credits for the photos would be bad enough. What if they also include their truthful testimonials? (“Thanks Josh, for the great wedding shots. We raise our right arms in salute to your photography. And we encourage all members of our local Nazi party to use Josh B Photography for all their wedding and special events needs.”) I don’t think that I have the right to disclaim credit for my own work, or to force someone *not* to give me the credit. (Although I do know that screenwriters have the right to take their name off a work–See Alan Smithee till 1980, for instance. So I’m happy to be corrected if other artists or professionals have that same legal right.)
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December 16, 2009, 7:17 pmjosh bornstein says:
rj,
Here, you are of course, correct. I think that, in real life. It will rarely be an issue. Especially re in a wedding, where presumably the couple wants good photographs and no drama from that end. I suspect that most of us, if faced with a photographer who tells us (directly or indirectly) that s/he is not comfortable doing the gig, would merely find another more-suitable photographer. So, except in the one-photographer town, it’s not likely to be an issue.
But I could certainly see someone making a point in another context, in order to make a political point. An anti-abortion group insisting on hiring an overly pro-choice photographer to photograph their anti-choice fund-raising dinner. An anti-gun group hiring a pro-gun photographer to document their protest march. I could certainly imagine these sorts of political groups being more than happy to raise a ruckus by hiring a photographer who deeply opposes the group’s raison d’etre. To raise publicity. To force the hand of the photographer, etc..
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December 16, 2009, 7:25 pmMichelle Dulak Thomson says:
Steve,
I don’t know if I really buy that Nazis are entitled to protection as a “political party” — I mean, maybe gay people should form the American Gay Party if it’s going to get them extra protection.
I think that if you organize for a political purpose, you get to be called a political party, even if you don’t make the minimum requirements for the ballot in a particular state. It is tricky to come up with a definition of “political party” that excludes the ANP and Aryan Nation and other “ickies,” but doesn’t also exclude nascent third-party movements that might be more to your taste. But have at it!
But setting that aside, if you don’t have the right to say “I don’t photograph Republicans, sorry,” I don’t see why the same thing shouldn’t apply to members of even ickier political parties.
Of course, the whole question at issue is whether you do or don’t have such a right, yes? I mean, that is what we’re talking about. You seem to be saying, well, you can’t possibly have such a right if there’s a law that says otherwise.
One perfectly good exercise in using the extreme hypothetical to test the principle down the drain here, I’m afraid. Quick! A yet more extreme hypothetical, stat!
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December 16, 2009, 7:56 pmarbitraryaardvark says:
Lists in nondiscrimination policies frequently use the term “creed”. nazism is a creed, as is libertarianism.
Has there been any judicial holding limiting the term creed to its sense of religion?
(Some nazis claim nazism as a religion as well, but that’s a different angle.)
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December 16, 2009, 8:09 pmq says:
You could say the same thing for many news wire articles. How expressive is it when you’re just describing events, anyway?
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December 16, 2009, 8:47 pmKarl Petersen says:
I wonder if there are other underlying issues in the instant case. At what point did the photographer back out of photographing the wedding? When first contacted ... or two hours before the ceremony, when it would have been impractical, to say the least, to find a replacement? At what point was she aware that it was a lesbian wedding? When first contacted, or when she first saw the brides? Did the plaintiff believe that the defendant was aware of this earlier than the defendant claims?
The answers to those questions may well have a lot of bearing on why a suit was filed. And I suspect the attorney may have decided the public-accomodation law was the best legal grounds for a claim even though there may have been stronger issues without much legal foundation.
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December 16, 2009, 8:49 pmneurodoc says:
Tangential but pertains to a Jewish photographer and a top Nazi...
Alfred Eisenstaedt was one of the giants of 20th century photography, taking many iconic candid shots. In 1933, he was at the League of Nations in Geneva, with Goebbels there. Goebbels was seated outside in a chair with his arms resting on the armrests and willing to have Eisenstaedt snap his picture. Then Hitler’s master propogandist was told this photographer was a Jew and most hateful expression imaginable came over Goebbel’s face. The result was an unforgetable and unsettling portrait.
Eisenstaedt spent time on Martha’s Vineyard and his work was carried by a gallery there. I was with a psychiatrist friend on the Vineyard one summer when he was considering an art purchase for himself. We were both fascinated by the unposed Goebbels piece which perfectly captured the Nazi’s consummately evil character. I thought my friend was going to buy it for $3K I think. Later, though, he told me he could not bring himself to do it, since whatever he bought was going to hang in his office. As striking and impressive as it was, he didn’t think he and his patients could bear it for too long. He bought a much less singular, but soothing Vineyard scene instead.
Anyway, the willing Jewish photographer captured the unwilling Nazi’s telling image for posterity.
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December 16, 2009, 8:55 pmKarl Petersen says:
The Alan Smithee pseudonym was a director’s pseudonym, used up till about 2000 and An Alan Smithee Film (an attempt at comedy about a director who wants to take his name but can’t because his name is Alan Smithee that itself wound up with the director taking the Alan Smithee credit. After that the Directors’ Guild decided that it was too widely known to be of use, and started allowing directors, like writers, to take any pseudonym of their choice.
However, the Guild only allows directors to take it when they can show that a producer took their work and distorted its original intent beyond recognition with editing or inserts (for example, Whitney Houston’s “I Will Always Love You” video is credited to Alan Smithee because the actual director felt the addition of the sequences from the film ruined the intimate effect he was trying for with Whitney singing in the small auditorium). The decision is made confidentially, and the director getting the pseudonym is required to never admit to being the director.
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December 16, 2009, 9:00 pmSteve says:
Of course, the whole question at issue is whether you do or don’t have such a right, yes? I mean, that is what we’re talking about. You seem to be saying, well, you can’t possibly have such a right if there’s a law that says otherwise.
Yeah, I pretty much take existing public accommodation law as a fait accompli. I mean, I respect people’s right to argue that freedom of association should trump everything else, but it’s kind of pointless discussing the close cases with people who don’t even agree that restaurants should have to serve black people.
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December 16, 2009, 9:06 pmjrose says:
The same would apply to the butcher, baker and candlestick maker. Yet, would we argue they are engaging in expressive works? I’m not sure whether wedding photography is an expressive work. But I’m sure the argument that the ability to screw it up implies it must be an expressive work is all wet.
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December 16, 2009, 9:37 pmDruid says:
Last I knew it was routine for photographers to retain copyright to their work, even the pics they do not give you proofs to order from.
Can we force copyright holders to provide copies of their work for a nominal fee?
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December 16, 2009, 9:48 pmDaniel Chapman says:
What if the photographer doesn’t want to ATTEND a homosexual wedding?
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December 16, 2009, 9:54 pmDiscrimination Against Nazis in Public Accommodations | Liberal Whoppers says:
[...] post: Discrimination Against Nazis in Public Accommodations Share this [...]
Chris Travers says:
Karl Peterson:
According to the ruling, the photographer backed out early, and was later contracted by the defendant’s partner who withheld the information that it was a same-sex wedding in order to see how the treatment might be different. While the photographer did not specifically refer the couple anywhere else, her responses seemed quite polite.
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December 17, 2009, 12:38 amChris Travers says:
jrose:
I would argue that in fact there might be an expressive component to the candlestick making and the backing (butchering is less expressive even at its finest).
However, even accepting this, the expressive components are less clearly attached to providing the service than the photographer.
So, consider cake decorating and interracial marriage. Suppose a cake decorator opposes interracial marriage as “icky” and wants to use his business to make a political stand against it. Suppose the cake decorator then engages in a policy of only stocking figurines of white folks. The business is happy to supply cakes to interracial couples getting married, but both figurines will be of white folks. The wedding parties can then switch out the figurines with ones they buy themselves elsewhere if they want and this is all mentioned up front, but, says, the decorator, “once you tamper with the decoration, we are not responsible for the result.”
Now, this doesn’t PREVENT a cake decorator from providing a cake to an interracial wedding, but it makes it somewhat uncomfortable for an interracial couple to use his services, which is the point.
Constitutionally protected?
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December 17, 2009, 12:43 amChris Travers says:
Steve:
I think it is certainly true that freedom of association is reduced when goods and services are offered for sale. I.e. I can’t advertise a real good deal and then when folks show up at the door say, “but it is only valid if you are a good buddy of mine. Sorry.”
However it doesn’t entirely go away either. I have told customers of mine that I won’t do business with them anymore. I figure as long as it is with cause or due to issues that affect my work, it is fair. There are individuals in the world who have never been my customer who I would flat out refuse to provide services for simply because I dont want to be associated with them.
I have also watched companies I am closely associated with consider whether or not to help customers based on ideologically centered approach to the customer. While I think this is unwise folks have to find their own ways.
The legacy of segregation was a real evil in this country which required (hopefully) temporary Constitutional sacrifices in areas of speech and association to address. It is not comparable to what ANY protected group goes through today. And at any rate those sacrifices should be kept as minimal a possible. There is also a danger that as the situation gets better we will become more sensitive to perceived injustice to the point where these laws can never be removed.
(BTW I get to pick on interracial couples because my marriage is interracial....)
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December 17, 2009, 1:00 amDavid Schwartz says:
A butcher who refuses to butcher for those he disapproves of has made his butchering for a particular person into an expressive work. If we’re going to prohibit him from doing that, we certainly can. But we should not pretend that it’s not expression that we’re prohibiting.
We are basically saying that you may not make your choice of customers expressive, even if it would otherwise be possible for you to do so. We are completely eliminating one possible form of expression.
We can do that if we want to, but let’s not lie about what we’re doing.
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December 17, 2009, 1:10 amTweets that mention The Volokh Conspiracy » Blog Archive » Discrimination Against Nazis in Public Accommodations -- Topsy.com says:
[...] This post was mentioned on Twitter by Eugene Volokh, Eugene Volokh. Eugene Volokh said: Discrimination Against Nazis in Public Accommodations: A commenter suggested that a hypothetical involving a ph.. http://bit.ly/6Z7CDT [...]
Butcher says:
[Trying comment again, formatting got messed up when editing...]
So should these rules only apply to photographers and others whose work is a speech product? That seems like a difficult line to draw. Just within the wedding context, does a florist’s particular arrangement call for no creativity/personal expression? A baker’s uniquely decorated wedding cake? A DJ’s selection of music?
Alternatively, to focus on the popular butcher example, could a Kosher butcher be forced to butcher a pig? Or to butcher an animal in a non-kosher manner? Not much in the way of speech product involved there.
There is also a concern about imputing any kind of non-speech conduct with expressive value simply by adding the statement “I’m taking this action because I disagree with the viewpoint espoused by my client, therefore it is speech.” That didn’t work particularly well as a compelled speech argument in FAIR v. Rumsfeld, though.
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December 17, 2009, 3:09 amjrose says:
Assuming a court agrees there is racial discrimination in violation of the statute, then isn’t this hypothetical no different than the baker refusing his service outright? If so, since you didn’t argue he was engaging in artistic expression, the resolution comes down to whether there is protected political expression? Seems like this must have been answered some where along the line in case law.
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December 17, 2009, 7:57 amGuy says:
If the photographer tells the couple in advance that she is going to take the pictures in a way that make them look bad, because that’s how she wants to portray gay marriages, but that she will take the pictures if they want, and then the couple had sued, she would have a tighter First Amendment case, this case is pretty borderline though.
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December 17, 2009, 8:05 amGuy says:
I suppose, but it’s a content neutral restriction, and I think the butcher is likely trying to deprive his potential customers of his services more than he is trying to express his distaste for them, which is pretty relevant. A man who hits his wife is creating an “expressive work” that expresses his anger/hatred/assholishness, but I think the ability of the government to prohibit that is a pretty easy First Amendment case.
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December 17, 2009, 8:11 amLou Gots says:
This is the bind we get into when rules are adopted which protect the speech we don’t hate. Tinker vs. DesMoines? Somewhere down the line, the rule gets applied to speech we don’t care for.
We are presently looking at these issues at my urban gun club. We already have strict rules against provoking words and gestures, including slurs and “hate speech.” The gravemen of these rules is the principle that “. . .an armed society is a polite society.” Fighting words are unacceptable where loaded weapons are about.
Now if someone showed up wearing a swastika, he would be told to take it off or leave. But what about a hammer and sickle, a Che Guevara T-shirt, or a Beauregard flag?
Our present practice would be ask a person displaying any of those symbols to remove them of of respect for the feelings of others. We have never been confronted a refusal to comply.
Now here’s why I bring this up. Because of our relationship with the City, there is no question whatsoever that we are bound by governmental non-discrimination standards. It gets better, some of our activities are open to the public–pistol matches and NSSA shoots (Skeet competition) There is again no question that public accomodation rules apply.
Our position remains that the freedom of expression of Nazi, Communist and racist sympathizers must bow to our responsibility to maintain peace and good order in the presence of deadly weapons. If someone wants to call us on it, bring ‘em on.
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December 17, 2009, 8:11 amjrose says:
That’s where the statutory Religious Freedom Restoration Act saves the butcher.
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December 17, 2009, 8:13 amYankev says:
Kudos to your club. The distinction is clear, of course, between rules of courtesy adopted by a voluntary organization and laws imposed by society and enforced by threat of fine and imprisonment.
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December 17, 2009, 10:05 amChris Travers says:
David Schwartz:
That’s a good point, but I would argue here that the expression would be unprotected in this context because it is of minimal political value (i.e. it contributes very little to the public debate that isn’t readily there otherwise) and is balanced against huge historical social evils.
How, whether the butcher could name his business “God Hates Fags Butchering Company” and stamp every packet of meat with “God Hates Fags(TM),” I don’t know. Is that protected? (Really I am asking.)
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December 17, 2009, 11:20 amADF Alliance Alert » Eugene Volokh on Elane Photography says:
[...] Discrimination Against Nazis in Public Accommodations: “So bans on political affiliation discrimination in public accommodations aren’t common — but they certainly exist, and it’s impossible to dismiss hypotheticals based on them as ‘absurd.’ And if the First Amendment is read as not protecting Elane Photography, it probably wouldn’t protect the speechwriter or press release writer who refuses to write for Nazis or Nazi events, either.” Related: [...]
Chris Travers says:
I certainly have no problem with this. I do have one question though: If a well-known member of the gun club were to write a letter to the editor (as an individual, not a representative of the gun club) suggesting that the Communists were right about the moral obligation to eventually overthrow the government, would that person be shown the door?
I am not saying there is a right or wrong answer. Just wondering if membership is also contingent on public image, not just a willingness to be polite with other gun owners.
(Personally, as a Norse Pagan with substantial Jewish ancestry, I would not associate with someone with clear, public, and well-known racist sympaties. Any group I were to run WOULD hold views by individuals on their own time against them. Again, I would not support the government passing laws against such expression though.)
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December 17, 2009, 11:53 amDavid Schwartz says:
Is it content neutral? If the law required him to serve literally everyone, then yes, it would be content neutral. But if the law prohibits discrimination based on specific protected classes, then I would say it’s not content neutral. The law, effectively, sets out specific ideas he cannot convey by his choice of customers.
I don’t think your analogy to the man who hits his wife helps for two reasons. First, compelling conduct and prohibiting conduct are very different. Second, first amendment rights always end at other people’s bodies and property.
As for the bit about depriving versus expressing, that is a perfectly legitimate means of communication. If I want to tell a company that I don’t approve of their labor practices, I do it by not patronizing them. If government could regulate speech any time it touched commerce, the only speech that would be protected would be messages scrawled in blood on pieces of paper we found in the garbage or shouted at passers-by at a train station.
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December 17, 2009, 12:14 pmPatHMV says:
The by far easier way, intellectually, to look at these cases is to say that Freedom of Association is one of the most important rights we have, but that the particularly pernicious evils of slavery and racism allow for imposing against the right of freedom of association as a way to remove the severe and deep harm that slavery and racism wreaked on our country.
This does not, then, require us to grant any other groups or associations the same right to infringe upon the freedom of association, unless they can demonstrate that the evils imposed on them are as deep and wide and severe as those imposed on black people for the first several hundred years of our nation’s existence.
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December 17, 2009, 12:30 pmGuy says:
It only fails to be “content neutral” by disproportionate impact, what a person intends to communicate isn’t relevant, (and I would stress that not every act based on a belief is necessarily a “communication” of that belief, I really do think you’re reaching here). At any rate, the intent of the law matters; the butcher isn’t being punished for expressing a bigoted opinion, the butcher is being punished for discriminating on a prohibited basis. Presumably he could express himself just (or nearly) as adequately by just voicing his opinion while serving the customer.
I’m not sure compelling conduct and prohibiting conduct are “very different”, and I do think that prohibiting expression is no less a constitutional problem, or possibly more of one, than compelling an act that could, in the absence of a compulsion, be interpreted as an expression of belief.
I know the wife-hitting example isn’t a perfect analogy, it wasn’t intended to be. But my understanding is that public accommodation laws are based on the theory that everyone has a right to be served by businesses that are open to the general public, and a denial of such service constitutes an actual harm, not as much harm as being struck, but harm nonetheless. Laws often single out specific bases of discrimination, but in theory, they are prophylactic measures taken to prevent certain types of arbitrary discrimination that are particularly common (see Romer v. Evans).
Also, my point was that depriving someone of something can be an expression, but that doesn’t mean it necessarily is. I could steal bread from you because I don’t like you, or to “express” my desire for bread, but more likely I’m just doing it because I want bread. A boycott is a combination of a message to a corporation and an exertion of economic pressure, but not patronizing a particular business is more often a purely non-expressive decision, even though it’s possible for a corporation to figure out mass opinions by economic behavior, that’s not why people are engaging in it.
I think if we understand “expressive conduct” broadly enough to include a butcher not selling meat to a particular customer, it’s difficult to imagine any conduct that is not expressive by that standard.
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December 17, 2009, 1:14 pmKen Arromdee says:
Taking the picture of the Nazi, in this context, means taking a picture of a Nazi which portrays the Nazi as honorable and praiseworthy, not taking a random snapshot which could as easily make the Nazi look bad as look good.
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December 17, 2009, 2:35 pmChris Travers says:
I am surprised nobody has stated a long-held cultural assumption here:
“A picture is worth a thousand words.”
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December 17, 2009, 2:50 pmBama 1L says:
I feel like I learned at some point that the early civil rights acts were passed pursuant to the 13th Amendment, and you had to make a connection to slavery (including slavery’s racial system) to find a violation.
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December 17, 2009, 4:01 pmdweeb says:
Why? You don’t appear to distinguish between believing that they should choose serve them and believing they should be compelled to do so.
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December 17, 2009, 6:32 pmRuth Institute Blog » Eugene Volokh on the NM wedding photographer says:
[...] on the chalkboard in a law school class. But enough about me. See his other posts, here, here and here. Spread the [...]
Chris Travers says:
BTW, I just came across this relevant page.
Many of the cases cited there seem quite shocking to me. Maybe the First Amendment is on the way out?
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December 17, 2009, 7:53 pmChris Travers says:
dweeb:
I personally think that such compulsion should have important sunset provisions. A sacrifice of this sort should be temporary to get over a serious social evil, not perpetual and expanding.
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December 17, 2009, 9:48 pmDavid Schwartz says:
There’s a huge fundamental difference. You can engage in conduct that tramples on the rights of another. But a private citizen cannot possibly, by refraining from engaging in conduct, trample on the rights of another.
In all the examples you give, the government is prohibiting conduct that trespasses in some sense. The domestic violence example is clearly in this category. Obviously, there are compelling interests in people not hitting each other.
There is, in all but the narrowest imaginable cases, no state interest at all in compelling one person to do business with another.
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December 18, 2009, 12:52 amChris Travers says:
Steve:
What about a press release if you run a PR firm. Would antidiscriminaton law require you to take on Nazi clients and write advocacy material for them?
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December 18, 2009, 1:22 amGuy says:
That position is consistent with libertarianism, but not, in my view, clearly enshrined in the Constitution. I agree that the question (for the butcher, at least) boils down to whether the rights of the person discriminated against have been violated. If segregation did (as I think it did) violate the rights of black citizens, and would have even if not propped up by de jure support, then the principle has already been established, and the question is now one of balancing. The theory, again, is that the public sovereign essentially holds an easement over all businesses that provide public accommodations, and that easement prohibits the business owner from engaging in any arbitrary discrimination. If a city can make zoning restrictions, I don’t see why it can’t require business owners to provide services to anyone unless there is an actual economic burden imposed on the business for doing so. (To be clear, I don’t think they even have to make an “economic burden” exception, but generally “arbitrary” discrimination can be identified in terms of whether such a burden exists, so the city would be wise to make such an exception.)
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December 18, 2009, 7:13 amChris Travers says:
One question for everyone who thinks this is a great decision.
If the antidiscrimination laws include political beliefs, should a Jewish-owned PR company be required to provide PR releases for events celebrating Hitler’s birthday if asked to by the American Nazi Party?
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December 19, 2009, 7:58 pmreadery says:
It’s worth pointing out the role photography and film played in Nazi propaganda. The Nazis made enormous use of the visual image for propaganda purposes and were masters of its political exploitation, from posters encouraging Germans to have large families to the famous use of still photography imagery in films like Lei Riefenstahl’s Triumph of the Will.
Triumph of the Will’s mastery of telephoto lens photography techniques created striking images that had an enormous impact on the history of film, and the history of the world.
It is difficult to view Triumph of the Will and hold onto a claim that photography and photographic images are not political speech. Photographs are nothing if they are not propaganda. No serious historian of photography could deny their role.
Nazi Germany, of course, saw itself as having every right to coerce photographers into producing images seeking to sear its approved ideas into the consciousness of citizens.
The question is whether America should, as Nazi Germany did, coerce photographers into producing propaganda images glorifying the types of families government approves of.
The fact that the types of approved families happen to be different is, for First Amendment purposes, of no moment.
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December 19, 2009, 9:51 pmreadery says:
Practice note: It won’t win the case simply to make the abstract constitutional argument. One has to illustrate it by pointing out the enormous propaganda role photography has had in history. The Nazi’s use of photography in propaganda posters to persuade Germans to have the kind of families the government wanted is not nearly as famous as their photography portraying Germans as triumphant or Jews as subhuman, but it was every bit as much a part of their propaganda machine. The use of photography in government propaganda attempting to persuade people about the kinds of families people should have is an undeniable historical fact.
Without this historical support, the constitutional arguments looks like nothing more than abstract theory. I would use Triumph of the Will and Jews-as-subhumans propaganda photography to give reality to the general idea that photography is political speech. But I would collect and enter actual wedding photographs used in actual government propaganda posters and films — especially Nazi ones but perhaps others as well — to convey the reality of wedding photographs as propaganda material.
This case needs evidence, not argument. Here a picture is literally worth a thousand words. It’s the very point that needs to be made to the court. How can the point be illustrated, or conveyed, in any way other than through pictures?
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December 19, 2009, 10:02 pmreadery says:
In other words, this a Cohen v. California moment. One has to put pictures before the court the same way Cohen’s lawyer put cuss words.
I’d seriously consider a brief consisting entirely of pictures and not containing a single word.
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December 19, 2009, 10:04 pmCompelled expression and the New Mexico photographer case says:
[...] posts on the religious accommodation angle, the inevitable what-about-racists objection, and the role of state laws prohibiting “discrimination” against customers based on their political beliefs. More: [...]