In the most recent discussion of Elane Photography v. Willock, a commenter asked: “Imagine if instead of a gay couple it was an interracial couple. Would you still support Huguenin’s refusal to photograph the wedding? Or what if the couple were parapalegics and she had an ‘aesthetic aversion’ to photographing the disabled?” The question (at least as to race discrimination) comes up routinely in such cases.
The answer is “of course.” It seems to me that freelancers who create expression — whether speeches, press releases, Web sites, photographs, paintings, musical compositions, or what have you — should be entitled to choose what they create, regardless of whether we find the basis for their decisions praiseworthy or contemptible. If a musician who is a member of the Nation of Islam member decides that he wants to only perform at black weddings, or non-Jewish weddings, or non-interracial weddings, he should be entirely free to do so. Likewise if an Orthodox Jewish composer decided he didn’t want to compose music commissioned for a wedding between a Jew and a non-Jew. (This may well constitute ethnicity discrimination, which the law generally treats much like race discrimination, if the composer is focusing not on the non-Jewish partner’s religious beliefs but on the non-Jewish partner’s being of non-Jewish descent.)
And of course the same would be true if a portrait painter concluded that he didn’t want to make art depicting certain kinds of disabilities (whether because he thought he wouldn’t be very good at that, or because it isn’t likely to be as aesthetically pleasing as he wants his art to be, or what have you). And it would be true for the other examples I gave, in which people chose what to write, photograph, or compose for based on the parties’ religion, political affiliation, source of income, marital status (imagine a Catholic who doesn’t want to write a press release for a celebrity wedding in which one party is divorced) or who knows what else.
The desire to prevent race or disability discrimination should no more dissolve your right to be free from being compelled to speak (here, to create an artistic work) than it should dissolve the right to express bigoted views, to choose members of a racist political organization, or to select ministers (or church members) based on any criteria a church pleases. And if that means that writers and photographers can’t be legally barred from choosing their subjects based on race, that’s just an implication of the basic First Amendment principle of the speaker’s right to choose what to say.
Steve says:
It’s not clear to me whether this is the law as it actually exists or the law as Eugene Volokh thinks it ought to be.
The distinction between a restaurant which refuses to serve black people and a musician who refuses to perform for black people is not compelling to me.
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December 16, 2009, 5:29 pmAllan says:
Hmmm.
Your logic calls into question all civil rights cases dating back to Heart of Atlanta. While there is a slight difference, Heart of Atlanta did not want to rent rooms and the photographer did not want to create a product. The latter certainly implies creative speech, the former does not.
What both involve is contractual agreements. If you support the reasoning in Heart of Atlant but not this case, you are advocating that contracts for speech is protected. But what if my speech is that I hate a certain ethnic group and did not want to want to rent my Alaskan apartment to that group as part of my speech?
I think both arguments go down a slippery slope.
I would read the opinion to not require speech. If the photographer does not want to have a business taking wedding pictures. But, if he does, he cannot discriminate on an unlawful basis for what pictures he will take.
On the other hand, I do see your point. If you are holding yourself out as a business, what right do you have to discriminate on any basis? Under this law, could Thurgood Marshall have refused to represent someone from the KKK?
And if you are correct, what would stop hotels from refusing to rent rooms to African-Americans? What would require pharmacists to fill prescriptions for prophalactics and birth-control pills?
Slippery slopes indeed.
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December 16, 2009, 5:36 pmtroll_dc2 says:
EV, have you forgotten 42 U.S.C. Sec. 1981, which has been interpreted to make unlawful the refusal to enter into contracts for race-based reasons? Or would you rule (as the Eugene Volokh Supreme Court) that the statute, as applied to a free-lance photographer, violates the First Amendment?
[Of course I would; if my First Amendment arguments are correct, they apply equally to antidiscrimination statutes generally. What’s so odd about that?
Incidentally, consider the Free Exercise Clause, which has been held as protecting religious organizations’ right to select their clergy notwithstanding antidiscrimination law, including bans on race discrimination. Would you say that somehow 42 USC 1981 should nonetheless apply, so that a church wouldn’t be allowed to limit its clergy to members of one race or ethnicity (sec. 1981 has been read as applying to certain kinds of ethnic discrimination as well)? –EV]
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December 16, 2009, 5:37 pmMark N. says:
The analogy’s slightly different. Not a musician who sells tickets to the general public for his concerts, and then refuses to sell them to black people (or white people, or Christians, or Jews), but rather a musician who makes his living by performing at events for a fee (weddings, art openings, graduation parties, etc.), and then refuses an invitation from the NAACP to perform at their annual banquet, on the basis of their being a black civil-rights organization. Or refuses an invitation from a Catholic high school to perform at their graduation ceremony, on the basis that they’re a Catholic school.
It’s possible that is also prohibited, but it’s a somewhat different setup: refusing an invitation to perform at an event for a fee, versus refusing to sell someone a ticket to an otherwise general-admission event.
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December 16, 2009, 5:39 pmroad2serfdom says:
Creating art is “speech”. Renting a hotel room is not speech.
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December 16, 2009, 5:45 pmAnon says:
Mark N & Steve:
I think Mark’s point can be simplified — you can’t force someone to create “speech” that is race neutral, but you can force them to sell their “speech” to all comers regardless of race.
For the photographer, he couldn’t refuse to sell existing photographs (e.g., a coffee table book of great photos) of weddings to a a biracial couple (based on race).
OTOH, you can’t force him to shoot pictures against his will.
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December 16, 2009, 5:48 pmYankev says:
Except that to an Orthodox Jew, non-Jewish descent should not matter if there has been a valid conversion. (Empahsis on valid, per the recent UK decision in the JFS case.) The only time that non-Jewish descent would matter is if the convert is female and marrying a Cohen. Of course, if she converted with that end in mind, the conversion itself is in doubt so we are back to belief. But let’s say she converted years before she met the guy. In that case, it’s still not entirely ethnic-based as they are based on the couple’s disregard of Jewish law, as there are several categories of women who were born Jewish that are also off-limits to a Cohen (e.g. mamzeres, g’rusha, chalutza,etc.)
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December 16, 2009, 5:48 pmSteve says:
Or refuses an invitation from a Catholic high school to perform at their graduation ceremony, on the basis that they’re a Catholic school.
That was my understanding of the hypothetical, and I don’t see why that should be any more permissible than a restaurant that doesn’t want to serve Catholics.
We’re not talking about a musician who is asked to write a song that’s appropriate for a Catholic graduation, simply a musician who offers to perform his standard set list for anyone who hires him, but doesn’t want to perform it for Catholics. Why that’s not discrimination I don’t know.
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December 16, 2009, 5:48 pmSkyler says:
I think Eugene is assuming that we have a free country here. I think that we still have the ideal of being a free country, but the reality has been far from it for quite some time.
Freedom includes the freedom to be rude, racist and discriminatory. And it includes the right to choose whom to do business with.
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December 16, 2009, 5:53 pmNate says:
Of course, it makes little sense to exempt businesses that commercialize some activity with expressive components from laws of general applicability — here, prohibiting any business that provides goods and services form discriminating on the basis of sexual orientation (or race) — simply because such businesses include an element of expressive activity. Such exceptions would swallow the rule and would eviscerate its purpose.
Indeed, nearly every business engages in expressive activity of some sort. Want a freelance CPA to prepare an investment strategy? It will likely be drafted and typed up for you.
It’s significant that the NMRFRA appears to apply only to individuals (i.e. human beings) and not to corporations, companies, associations, organizations, unions, etc. Such artificial entities benefit from state recognition of their corporate or other artificial form and are thus not able to discriminate on impermissible bases, unlike individuals, who still are. Eugene unfairly dissolves this distinction. If Elane herself wants to discriminate on impermissible bases, she should cease using a wealth-creating corporate structure from which New Mexico allows her to benefit.
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December 16, 2009, 5:53 pmMark N. says:
It seems perfectly reasonable to me. I personally would refuse such an invitation, because as an atheist who opposes religious education, I would not want to in any way support or benefit an organization dedicated to religious indoctrination, such as Catholic schools.
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December 16, 2009, 5:54 pmDave N. says:
I believe Mark N. (no relation) has the right analogies in explaining why refusing to rent a hotel room to blacks is a form of illegal discrimination while refusing to act in a personal, professional capacity is not illegal.
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December 16, 2009, 6:06 pmSteve says:
I think it’s just a way to privilege certain professions over others. I mean, as a lawyer, naturally I feel it’s my God-given right to say “sorry, I don’t feel like taking that case” for any reason I choose, but at the end of the day I’m not sure why I’m more special than any member of any other occupation. I can refuse to advocate for black clients, but the restaurant across the street has to serve everyone? Not really buying it.
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December 16, 2009, 6:15 pmJ. Aldridge says:
During reconstruction it would had been impossible to adopt under the 14A a prevention of discrimination of race or disability. Instead, it was chosen to prevent discrimination in the (equal) process of justice and citizenship (P&I’s clause).
Race or disability discrimination is an entire invention of the courts which has placed them above the legislature and the people.
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December 16, 2009, 6:16 pmGruntled_2L says:
I think Mark N. has the right idea. Nothing seems amiss about discriminating against different groups here. A dance troupe that includes several homosexual performers may be reluctant to perform at a religious venue because of opposition to the policies of that religious group. They refuse to perform. They are happy to perform at any other venue. Should they be compelled to perform? An athiest might have similar concerns to the ones Mark N. expressed above. A religious choral group may be reluctant to perform at a “Church of Satan” event.
Is a performing art a public accommodation? I don’t think so. The interstate commerce justifications applied in Heart of Atlanta seem pretty tenuous here, too. I think that there is a palpable difference between public accommodations and professional services. Professionals sometimes MUST discriminate in order to keep the quality of their work up. If they take on bad cases (in the case of lawyers) or controversial photography assignments (in the case of photographers) they risk damaging their professional reputation for good work. I know photographers who won’t shoot ugly people because it ugly people drag down (or at least have to be omitted from) their portfolio. I see a difference, though I can see the same argument made about restaurant clientele.
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December 16, 2009, 6:19 pmptt says:
Whether Eugene thinks someone should be able to discriminate against an interracial couple in the provision of services isn’t quite as fascinating a question as whether there are precedents giving (little bitty LLC) companies that right.
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December 16, 2009, 6:21 pmbchurch says:
Mark N,
So if the photographer stayed put, and had couples come in to her office and wait in line for photos, she wouldn’t be able to discriminate against gay couples? But if she routinely goes to events for fees she can? Still not sure I see a speech based distinction.
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December 16, 2009, 6:22 pmSteve2 says:
I think that’s because all civil rights cases dating back to Heart of Atlanta were grounded more in the reasoning of “This discrimination is pernicious, so we’re going to allow anti-discrimination law against it” more than “The application of logical reasoning to the text of the Constitution allows this anti-discrimination law”. Anti-discrimination laws are by and large for good purposes (with a few exceptions, like ADEA), but in the civil rights cases the Court seemed to be ignoring the corollary to that old quote “Not every undesirable law is unconstitutional”: not every desirable law is constitutional.
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December 16, 2009, 6:24 pmSunTzu's Nephew says:
Isn’t there an old legal saw about specific performance — the punch line of which is “but you can’t make him do it well”?
Aside from generally being annoying and playing the victim card, why would anyone want a person who has said they won’t do their very best work (for whatever reason) working on them? Especially when that notice was offered at first contact so there is no time pressure to find a replacement?
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December 16, 2009, 6:24 pmSteve says:
A dance troupe that includes several homosexual performers may be reluctant to perform at a religious venue because of opposition to the policies of that religious group.
Well, and a restaurant with a gay kitchen staff may be reluctant to serve dinner to Catholics or Republicans or whatever, but they still have to.
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December 16, 2009, 6:44 pmGruntled_2L says:
But do the performers have to perform?
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December 16, 2009, 6:46 pmrichard says:
Freedom includes the freedom to be rude, racist and discriminatory. And it includes the right to choose whom to do business with.
Yeah, all those goddamn civil rights laws really destroyed freedom. It was really a free country (for us white men) when you didn’t have to serve blacks and Jews or let women into our clubs. Viva freedom
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December 16, 2009, 6:46 pmGuest14 says:
I don’t see the value of such freedom, and I’ve never seen it explained here. And I must say, I’m glad your views are on the losing side of history.
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December 16, 2009, 6:51 pmcommon_sense says:
It seems that there is a difference in ruling that Congress can pass anti-discrimination laws under the commerce clause and recognizing that a constitutional right trumps a state level anti-discrimination law.
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December 16, 2009, 7:01 pmSteve says:
But do the performers have to perform?
In my opinion, yeah they do, as long as we’re talking about their standard performance as opposed to something they’re expected to personally tailor for the group that they don’t like. I mean, I’m sure the chef thinks he’s an artist who expresses himself through fine cuisine, but to me he’s just the guy cooking dinner.
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December 16, 2009, 7:02 pmMalvolio says:
Hey, I don’t see the value of homosexual sodomy, but I still support the Lawrence decision. If freedom means anything at all, it means the freedom to do things other people don’t want you to do.
First they came for the Nazis, and I did not speak out—because I was not a Nazi...
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December 16, 2009, 7:02 pmDavid Schwartz says:
This pretends to be a distinction, but it’s not. Who you say something to is part of the expression of the speech. “You’re a great guy” is not the same expression when said to Jack as it is to Jeff.
Suppose the “speech” was a “this restaurant approved by Jeff Smith” sticker. Must Jeff Smith sell this sticker to all comers? How is that not compelled speech? Or can he sell a different sticker to each restaurant? And if so, how does that not allow the wedding photographer to provide a “different” service (specifically, one not involving photographing a ceremony) to a same sex couple?
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December 16, 2009, 7:05 pmSuperSkeptic says:
...says professor volokh.
Not really, first Steve is right. There is no logical difference in forcing someone to take photographs for all comers if they are set up in a shop and allowing them to discriminate on the basis of race if they have no shop but take “freelance” requests to take photographs one-by-one. The functional purpose of the compulsion is the same in both because the photographer simply wants to discriminate on the basis of race, plain and simple. In fact, you could consider that his “expression” under the first Amendment either way. He is expressing his disdain for other another racial category of people (a political statement). Professor Volokh and those who agree with him are relying on the dubious speech vs. conduct distinction to ignore calling (the dubious decision in) Heart of Atlanta wrong.
Because people couldn’t/cannot tolerate such a situation resulting from free interaction, we are dealing with such questions regarding the extent of that limitation today. This is called an unintended consequence.
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December 16, 2009, 7:12 pmSteve says:
Suppose the “speech” was a “this restaurant approved by Jeff Smith” sticker. Must Jeff Smith sell this sticker to all comers? How is that not compelled speech? Or can he sell a different sticker to each restaurant? And if so, how does that not allow the wedding photographer to provide a “different” service (specifically, one not involving photographing a ceremony) to a same sex couple?
Because in the case of the wedding photographer, the message that the photographer personally approves of the ceremony is something you’re just making up out of nowhere. No one who looks at my wedding pictures has any idea who took them. I can’t defend my restaurant’s refusal to serve black people by claiming that my meal would be expressing approval of black people dining with white ones and therefore it’s expressive.
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December 16, 2009, 7:20 pmSuperSkeptic says:
Yes, you most certainly can, but nobody on any court will value that expression, so therefore it is unprotected speech outside of the scope of First Amendment protection.
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December 16, 2009, 7:29 pmSteve says:
Yes, you most certainly can, but nobody on any court will value that expression, so therefore it is unprotected speech outside of the scope of First Amendment protection.
Is that how it works? The First Amendment only protects opinions that don’t suck?
I feel extremely confident that if I write a book arguing that black people should not dine with white ones, it would be entitled to First Amendment protection.
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December 16, 2009, 7:32 pmInstapundit » Blog Archive » EUGENE VOLOKH: The First Amendment and the Race Discrimination Bogeyman…. says:
[...] EUGENE VOLOKH: The First Amendment and the Race Discrimination Bogeyman. [...]
SuperSkeptic says:
Unfortunately Steve, yes it does work like that when you are trying to convince the court that your “conduct” is really “speech.” See my comment from 7:12pm. And be careful if the argument in that book comes close to discussing anything regarding child pornography or otherwise depicts any sexual conduct you think judges might not like...I realize that might be unlikely given your subject matter, but just to give you the heads up.
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December 16, 2009, 7:49 pmTwirip says:
The whole “discimination” issue totally lost the plot back when it was decided that government could discriminate and individuals could not.
Something that ass-backwards could only come from the minds of politicans, and politicians masquerading as judges.
A poor rhetorical, as the answer is supposed to be “Of course”.
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December 16, 2009, 7:50 pmreadery says:
But the Court has consistently said that religions have the same power to select their messengers as it does to select their message, and in religion messenger and message form an organic whole which the state cannot artificially separate into message characteristics (‘belief’) and messenger characteristics (‘ethnicity’). So if a person has the right to limit clients to members of their religion, they necessarily have the right to define membership the way the religion does. The State can’t establish its own conception of how religious membership ought to be defined and impose that on the religion.
I’ll point out here that at least for the major traditional world religions that anteceded the Constitution, their religious status is data from which theories of how religions are defined have to be constructed.
One can’t simply define ‘religion’ to be whatever one wants and then claim that established world religions aren’t genuine whenever they have characteristics that don’t meet ones definition. The territory forms the map: the map does not establish the territory. One has to take the empirical data into account. If a law defined ‘religion’ in a way that excluded Christianity, Judaism, Islam, Buddhism, Hinduism, Taoism, or a similar well-recognized, well-established major world religion, that would be an indication (sufficient but not necessary) that something was wrong with the law.
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December 16, 2009, 7:53 pmTwirip says:
It depends on what you mean by “can’t force”. You can force people to do just about anything you have the force to make them do. It’s no more illogical to force people to create race neutral speech than it is to force them to sell their speech to all comers regardless of race.
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December 16, 2009, 7:56 pmTwirip says:
Indignation is not an argument.
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December 16, 2009, 7:59 pmDavid Schwartz says:
So your argument is that my analogy fails because the message is different in the two cases? Why does the content of the message communicated matter?
Of course you can defend your restaurant’s refusal to serve black people by claiming that your serving would be expressing approval of black people dining with white ones and is therefore expressive. It *is* expressive in precisely that way. If we’re going to suppress minimally-expressive conduct in favor of anti-discrimination, let’s not lie about what we’re doing.
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December 16, 2009, 8:23 pmreadery says:
We don’t think of citizenship as being an invidious characterstic — the United States, like all sovereigns, frequently limits its services to its citizens. We don’t think of citizenship as mere ethnicity. Sovereignty elevates the status of membership in a sovereign entity to something more than that, and legitimates the distinction. In the world of nations, citizenship occurs independently of personal beliefs and wishes all the time. So here.
To say that a religion can’t define its citizens is to say it isn’t soveriegn. But the Religion Clauses give religions quasi-soveriegn characteristics. They are in some respects like nations, not mere ‘ethnic groups’.
All this is doubtless rather antithetical to the kind of individual-centered liberatarian view that sees religion as nothing but a kind of personal belief and hence sees religion as nothing more than a subclass of personal rights rather than seeing religions as having their own rights as quasi-sovereign entities, such as the right to define their members. If religion were nothing more than a personal belief, it would make sense to ask whether a person shares ones belief, rather than asking the status-like question of whether a person is a subject or member of or owes a duty of loyalty to the same sovereign as one.
But the Religion Clause caselaw makes the latter view an undeniable part of our constitutional jurisprudence. Religion involves membership and status, not just belief.
One can say this concept of religion wrong and shouldn’t be, just as one can also say the concept of the nation-state is wrong and shouldn’t be. One can say that people ought to be able to choose what country they want to belong to with complete freedom and without that country having any say in the matter. One could say the same thing about religion. But one has to deal with the law as it is, not as one wants it to be.
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December 16, 2009, 8:28 pmbluprntguy says:
The issue is not whether an artist is free to photograph or not photograph any subject — that issue is unaffected. The issue is if that photographer CHOSES to offer SERVICES to the PUBLIC in exchange for MONEY. If they do, they must operate within the confines of our society’s non-discrimination laws in relation to the services they offer for a profit. This is a distinct difference from First Amendment rights.
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December 16, 2009, 8:30 pmDavid Schwartz says:
What do you think the “distinct difference” is? They seem precisely the same to me.
If I’m a freelance writer, and the American Nazi Party wants me to write a pro-Nazi piece, and anti-discrimination laws prohibit discrimination on the basis of political affiliation, how is that not a 1A issue? (Assuming I have no desire to engage in pro-Nazi speech.)
What is the “distinct difference” that you claim there is?
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December 16, 2009, 8:40 pmChris Travers says:
Steve:
Yet the distinction between a singer who refuses to perform for black people and an artist who refuses to portray black people in his work seems very compelling.
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December 16, 2009, 8:41 pmChris Travers says:
Steve:
I am not really sure I buy that analogy. A photographer, a poet who works for commission, a painter who takes commissions, etc. are all engaging in “speech for hire” of an especially expressive kind. I.e. their works created in the service of those commissions are particularly expressive and they should have a right not to create any works they don’t choose to create.
Now, let’s take this to a restaurant where speech and service are a bit more separate. Certainly I think it is reasonable that a restaurant may not refuse SERVICE to someone as a result of race. However, I don’t see any reason why the owner greating every black customer with “If you want to eat here I have to serve you, but I really don’t like your kind” would seem to be within his rights, or do you disagree?
Similarly, if the restaurant wants to decorate with confederate flags, old photos of lynchings, etc. that would similarly be within their rights, would it not?
Could a restaurant serve blacks officially the same service as everywhere else but go out of their way to use pure speech to create an obviously hostile atmosphere? I would hope so even though I would find that to be a good reason not to do business with them.
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December 16, 2009, 8:55 pmChris Travers says:
Steve:
I believe my wedding album contains information about who took the pictures.
If the photographer always put such marks on wedding albums would you feel differently?
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December 16, 2009, 9:03 pmBC says:
As has been noted, freedom doesn’t mean much if it only encompasses the “freedom” to think and act in ways that others approve of.
I’d also add that there’s a rather enormous difference between defending someone’s right to be a bigoted asshole, and actually approving of their bigoted assholery.
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December 16, 2009, 9:22 pmSuperSkeptic says:
Conduct with an expressive message = unbelievable = unprotected.
The case of the war protester burning the american flag = believable = protected.
Right?
David Schwartz is right again. I guess if Steve decides to sell his book arguing that blacks should not eat in restaurants with whites, it is now completely regulatable, prohibitable, and potentially outside the scope of the First Amendment protections because now he “CHOSES to offer SERVICES to the PUBLIC in exchange for MONEY.” Right?
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December 16, 2009, 9:30 pmrdjc says:
The Supreme Court established the difference between action and speech in the case about the Black Panther
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December 16, 2009, 9:35 pmSteve says:
A photographer, a poet who works for commission, a painter who takes commissions, etc. are all engaging in “speech for hire” of an especially expressive kind.
This idea that a wedding photographer is somehow “especially expressive” just like a poet is ludicrous to me. Have you not noticed how all wedding photographs look the same? Similarly, the guy who works at Sears Portrait Studios is not Robert Frost.
Conduct with an expressive message = unbelievable = unprotected.
It’s not just that it’s unbelievable, it’s that there is no such message. The wedding photographer might have thought that the couple was terrible for one another or that the ceremony was incredibly tacky. The photographer might be a supporter of same-sex marriage or an opponent. There’s no message of approval in the photo, it’s just a picture.
Of course you can defend your restaurant’s refusal to serve black people by claiming that your serving would be expressing approval of black people dining with white ones and is therefore expressive. It *is* expressive in precisely that way.
I think this argument defines “expressive” down to the point where it means nothing at all.
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December 16, 2009, 9:40 pmTweets that mention The Volokh Conspiracy » Blog Archive » The First Amendment and the Race Discrimination Bogeyman -- Topsy.com says:
[...] This post was mentioned on Twitter by Eugene Volokh, Eugene Volokh. Eugene Volokh said: The First Amendment and the Race Discrimination Bogeyman: In the most recent discussion of Elane Photography v... http://bit.ly/5pn1zG [...]
SuperSkeptic says:
Steve,
“One man’s vulgarity is another’s lyric.” The fact that our “expressive conduct” “means nothing at all” to you is precisely the point.
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December 16, 2009, 9:53 pmhayeslegal says:
Wow this is extremely interesting, and your coverage is very comprehensive. Working in the legal realm I try to stay on top of influential cases but this one (Elane Photography, LLC v. Willock) slipped through the cracks for me. I’ll have to go back and try to catch up on your previous posts, but I also want to thank the other commenters for putting out some great thought.
Lot’s for me to consider!
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December 16, 2009, 10:21 pmtheobromophile says:
To continue this analogy: how many lawyers here would be comfortable with the government (not their bosses, not their other law partners) requiring them to violate their consciences in legal representation in the name of non-discrimination? Should a pro-choice advocate be forced to represent NARAL and the NRLC on an equal basis?
To throw a monkey wrench into the works: many lawyers give away their time to causes they care about. Can the government require them to give away their time to causes that they detest, on the grounds that charging anything would amount to using cost to discriminate? (I’m assuming, of course, that it’s every bit as illegal to charge people more money for a hotel room, based on race, as it is to outright refuse to rent.)
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December 16, 2009, 10:26 pmJunk Science Skeptic says:
I’m surprised nobody has brought up the obvious side of the restaurant analogy, which highlights the difference of create vs. serve.
Joe Smith’s restaurant can arguably be forced to serve anybody who comes in the door, but being a strictly vegan restaurant, a prospective customer can not force Joe to create/offer a steak dinner on his menu.
While some of the arguments made above would pass the laugh test if the photography service at issue was school portrait shooting, it’s clear that many of the comments have been made by those with zero experience hiring or being a wedding photographer. To make a valid analogy, one needs to have at least a modest level of knowledge of the subjects on both sides of the analogy. The fact that one has shot kiddie pics with a 3 megapixel point & shoot camera doesn’t qualify one as a photography expert, say nothing of being a wedding photography expert.
Wedding photography is as similar to other PROFESSIONAL photography as brain surgery is to nuclear physics. Further, photography is but a small portion of what a wedding photographer does for his/her clients.
Make all of the circular arguments you want about the perpetuation of special rights for certain protected groups, but quit pretending that your $60 camera makes you a photography expert.
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December 16, 2009, 10:46 pmMatthew Carberry says:
Is there any point in looking at the actual circumstances on the ground that led to most civil rights legislation and then seeing if those circumstances are still even relevent?
Similar to what is being sidled into with election law changes. If, at the time the law was written, in a few places it was actually a practical impossibility for a certain class to get equal treatment, say all wedding photographers were white and refused to do business with blacks AND no wedding photography businesses owned by blacks were allowed by state/local law, licensing or zoning from opening, but now, 50 years later, there are any number of photographers in that area willing to provide services on an equal basis and, more importantly, state/local gov’t. is forbidden from using its powers to restrict individuals from providing such services if they, being more enlightened and able to count money, decide to do so, why on earth are those laws still necessary?
The laws have achieved their fundamental goal of enforcing “fair treatment” for as long as it took most of society to catch up. The bigots are now unimportant; the free market, nurtured/coerced by apparantly necessary gov’t action for a limited time, has provided them with lasting competition.
Since state/local gov’t will still be bound by equal treatment legislation, they cannot subvert the free market of individuals to turn back the clock or unring the bell.
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December 16, 2009, 10:51 pmChris Travers says:
Ok, so let’s take a step into a parallel universe. In this parallel universe the First Amendment is unchanged, but nobody has wedding photography done, but instead commissions sonnets about their marriage from poets who operate on commission. Most sonnets seem somewhat the same in this way and there seems to be a general formuleic form to them though of course each one is at least somewhat unique.
Is that expressive enough to fit under First Amendment protections against compelled speech if the poet doesn’t want to accept commissions to write poems for interracial or same-sex marriages?
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December 17, 2009, 12:19 amChris Travers says:
Steve:
Also, would you think that including racial slurs in business names, fostering images designed to drive away black customers and even flat-out telling black customers that, while you are legally required to serve them, you would be much happier if they would do business somewhere else would be Constitutionally protected conduct of a restaurant owner?
In other words, can a restaurant owner do everything SHORT of flat-out fighting words/real threats/actually REFUSING TO SERVE blacks in order to try to keep them out of his establishment?
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December 17, 2009, 12:24 amChris Travers says:
Junk Science Skeptic:
None of what you say suggests that photography is any less expressive because it is a professional service as well.
Following the analogy, real PR work is a profession too, but that doesn’t make it any less expressive, and I have a hard time imagining a restriction on PR work that would not be content-neutral (i.e. would be aimed at protecting a protected class) and would survive a first amendment challenge.
Also to everyone else:
Is the ACLU involved in this case? If not, is it because the plaintiff doesn’t want them involved for idiotological or political reasons? It really seems it SHOULD be right up their ally.
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December 17, 2009, 12:28 amDavid Schwartz says:
I see very little value in having freedom of expression if others get to decide which expressions are important enough to be protected and which are not. What about the freelance writer who is asked to do a piece glorifying the American Nazi party?
The problem is that this argument will not prevent any compelled speech at all. The inexorable logic is that if the speech is compelled, there is no expression. If somebody *makes* me shoot wedding photos, then those photos cannot convey any sense of approval. he problem is that this makes it impossible for someone to convey an actual sense of approval.
That is, certain important forms of expression are made impossible by a regime where compelled speech is permitted. Declaring weddings photos not to be expressive automatically makes them so — since there is no longer any ability to select which weddings to shoot. A form of possible expression is permanently foreclosed entirely by such a rule.
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December 17, 2009, 1:08 amSkyler says:
Theobromophile wrote:
Actually, in our professional responsibility class in law school this was a situation we had to learn about. Lawyer (in Texas, I believe) was directed to defend a client and the issue involved an abortion. Lawyer decided for religious reasons that he did not want to argue in favor of abortion in court and asked to withdraw. Court ruled, backed by ethics panel of the bar association, that the lawyer was not allowed to withdraw and had to argue in favor of abortion for his client. I can’t find the cite for this, maybe someone else knows of it.
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December 17, 2009, 1:48 amtheobromophile says:
Thanks, Skylar.
To add another issue into the wedding photography business: last time I checked, wedding photographers go to the wedding in question. They sit in the church, listen to the ceremony, watch the exchange of vows, and are at the reception. That person shouldn’t be forced to involuntarily be witness to a marriage ceremony that she finds to be immoral, no more than someone should have to sit through (and, by her presence, implicitly approve of) a marriage between a middle-aged man and a child bride.
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December 17, 2009, 2:11 amRicardo says:
I’m not sure that’s much of an additional consideration. I was just at a wedding yesterday and the thought of whether or not the wedding photographer personally approved of the wedding was simply not on my mind. I doubt it was on the minds of any of the other guests either. Unless the photographer is a personal friend of the groom or bride, the common sense presumption is that he or she would rather be at home watching TV or doing something else rather than witnessing some strangers’ wedding if it wasn’t for the money involved. If a real-life wedding photographer were to ever raise this objection, I’m fairly confident he or she would be the only person at the ceremony to actually think this.
Honestly, I doubt anybody really cares whether or not the photographer “approves” of the wedding or not. Granted, I’m inclined to agree with Volokh that photographers or other artists who work on contract ought to be able to discriminate under the First Amendment. But part of the phenomenon known as “having a job” involves sometimes doing things one finds personally distasteful.
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December 17, 2009, 3:20 amAllen McPheeters says:
I’ve wondered about this for some time now: if there’s a freedom of association protected by the First Amendment, does that not imply a freedom not-to-associate? Our civil rights laws have had many positive effects, and have probably resulted in more good than evil, but I’m not sure they’re constitutional. And, it seems to me, that they’ve opened the door for all kinds of other laws that can be used mischieviously: sexual harassment laws, which make conduct illegal on the basis of how somebody else feels about it, are just one example.
I think that Congress would have been on very safe ground making laws that said the government could not discriminate on the basis of race, etc. When they made laws that prevent everyone from discriminating, that’s a little too thought-control-ish to me.
Racism is boorish, rude, unpleasant, and should be shunned... but I think it’s constitutionally-protected. (Regardless of how SCOTUS has ruled.)
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December 17, 2009, 4:32 amCato The Elder says:
Useful life lesson. However, most learn that lesson on their on time, at their own pace — why exactly do you think it is up to the government to decide the appropriate maturity level one must show at his or her employment? A liberal “activist” can be as idealistic/quixotic in his choice of profession as he wants to be, right?
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December 17, 2009, 5:34 amGuy says:
I’m not sure one way or the other whether this is constitutionally protected expression, but these counterarguments are unfair. Steve isn’t saying “this expression doesn’t get First Amendment protection because it is worthless”, he’s saying that it isn’t an expression at all.
Hate to nitpick, but that’s not a corollary. “There exists an x such that –Px and Qx” does not logically imply “There exists an x such that Px and –Qx”, nor does your premise in this particular case even indirectly seem to imply your conclusion; I think, a priori, one could suspect that desirable laws are a proper subset of constitutional laws even if one did not include “constitutional” as an explicit part of the definition of “desirable”.
I’m not saying that every desirable law is constitutional (it depends on how you define those terms), I’m just saying one of my pet peeves is that no one seems to know what a “corollary” is.
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December 17, 2009, 7:31 amYankev says:
Unfortunately, a British appeals court recently ruled to the contrary, holding that a Jewish school operated under Orthodox auspices engaged in discerimination by refusing to recognize a mother’s non-Orthodox conversion. The court ruled that it was ethnic discrimination for the school to consider the woman’s son non-Jewish. British courts as far back as Coke have demonstrated hostility toward exercise of the Jewish religion.
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December 17, 2009, 10:13 amSuperSkeptic says:
But Guy, Steve is saying that “it isn’t an expression at all” because he doesn’t value the underlying expression, i.e., “it is worthless” to him. He can’t fathom someone actually and honestly feeling that way about the photographing of a wedding, therefore, it is not “expressive conduct” and unprotected. He feels likewise about the “expressive conduct” of refusing to feed black people with white people at his restaurant. But, if he saw someone burning a flag, he would probably support First Amendment protection, wouldn’t he? That is because he can contemplate the underlying expression and attribute to it value worth protecting. Steve’s position is an example of the problem with making the protections of the First Amendment dependent upon the value judgments of others.
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December 17, 2009, 10:33 amDavid Nieporent says:
Well, I agree that the restaurant shouldn’t have to, but the difference between the two situations is not that “professions” are privileged, but that speech is privileged.
Incidentally, note that if you’re a bigot who hates black people, you may have an ethical obligation not to represent them; if you don’t feel you can be a zealous advocate, you can’t take their case.
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December 17, 2009, 11:28 amChris Travers says:
Yankev:
This is getting off-topic, but I think a major contributing factor in the Israeli-Palestinian mess is the legacy of (and even continuing) hostility towards practising Jews in Europe. Antisemitism might look dead and certainly it is nothing like it used to be, but it is there nonetheless. I almost think the point of the Balfour Declaration was to get as many Jews to leave Britain as possible.....
One other big problem that we see generally in Europe though is that I think this problem is actually made worse by the myriad of hate speech laws that exist in many countries there. I think this ensures that racism of this sort, where presented to the public, is done so in a very sugar-coated way. I think this is one reason (separation of church and state being another) why the despite the fact that more hate speech and writings come out of the US than the EU, why we have fewer issues like that braindead British ruling. At least we can see the hate for what it is.
We seem to be on the same side of this argument regarding artistic expression and discrimination, and I wonder if this is part of a much larger, more complex picture.
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December 17, 2009, 11:36 amDavid Nieporent says:
It’s inherent in the pictures. If you don’t think that a photographer can convey a different message by taking different shots in different ways, then you don’t know anything about photography, even as a consumer of it.
Even if that’s true, how is that relevant? Are you claiming that the government can compel someone to express a particular viewpoint as long as most people don’t know that it happened? Can the government pass a law requiring you to keep a flag in your living room and salute it each morning?
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December 17, 2009, 11:49 amDavid Schwartz says:
But his conclusion that it’s not expression is a self-fulfilling conclusion. Even flag burning wouldn’t be expression if the State compelled everyone to burn one flag a week. However, if the conduct was not compelled by the State, then choosing to engage in it would be expressive.
Steve is saying the State should prohibit people from making their choice of people to do business with expressive, even where they can do so and want to do so. This wedding photographer wanted to make her choice of who to do business with expressive, and wanted it to express her belief that she is a wedding photographer and this was not a wedding.
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December 17, 2009, 12:01 pmcopyright fan says:
I understand the slippery-slope concerns of those who say the “expressive” angle could be invoked by cake decorators, caterers, etc. Is it worth anything to note that the photographer — even the not-so-creative on at the bottom of the scale — can and typically does copyright the work? That seems to me an indication the the legal system has already endorsed a line between some expressions and others.
When the cake decorator gets the copyright, fine, give her the same exemption, but till then, it seems a good proxy.
That seems better to me than the slope in the other direction, for commissioned speeches and artwork and so on.
Also, if there is no line between content (that it’s SSM as an activity being photographed) vs. identity of customer (that they’d willingly sell any pre-made books or supplies to gay customers), could the photog be forced to record nude photos? Hard-core porn? f you refuse to film my threesome, you’re discriminating against my polyamoric orientation?
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December 17, 2009, 12:49 pmElfwreck says:
I don’t think those are parallel examples.
*Performing* music is not an automatically-copyrighted act. *Composing* it is. Requiring someone to perform music is (legally) no different from requiring he cooks a meal, or that he sells items off a rack–while the performance can be copyrighted, copyright is owned by the *recorder*, not the performer. (And composer, if the music’s not in the public domain.) Requiring someone to *create* music is different.
Much as I hate anti-marriage bigotry, I’m with the photographer on this one: it shouldn’t be legal to force someone’s creative expression. Even something as trite as wedding photos.
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December 17, 2009, 1:11 pmTGT says:
People seem to have opinions upon whether wedding photography is art or not and should then be protected. I say it’s moot. I think using a deck builder as an example instead shows why.
I want to hire someone to build a deck, which I will then use for something considered religiously unacceptable to the builder. Can the builder refuse to build my deck on 1st amendment grounds in the following cases:
* I create the plans for the deck,
* the builder uses stock plans he already has created,
* the builder creates the plans for a simple deck, or
* the builder creates or uses existing plans, but I ask for some design to be inset on the deck
I don’t think anyone could say the first is speech. Is the second? The third? The fourth?
Does the builder get to decide whether or not its speech? The community? The government? Me?
Do we have to break the deck builder down, and say he’s legally required to contract to build me a deck, but can refuse to provide the service of creating plans for the deck?
Coming back to the example, could we say the wedding photographer has to take pictures of the wedding in a way that’s not speech? Does the fact that she is creating something automatically make her product speech?
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December 17, 2009, 1:56 pmElfwreck says:
Photographs are automatically speech. It’s not “the fact that she’s creating something;” not all creations are speech. (Clothing designers have to deal with knockoff copies because clothing is not “speech.”) But photos are definitely a form of speech protected by first amendment rights.
I’d assume your builder could be required to use your plans, or even plans he’s already created, but not be required to make new plans. Building according to *your* changes to plans might be required. (Extrapolating, there, from the concept that “speech” should not be compelled, rather than any specific precedent.)
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December 17, 2009, 2:04 pmGranite26 says:
Amen...
If we believe that as soon as we drop racial discrimination laws everything will go back to pre-60s, what’s the point of creating the laws in the first place?
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December 17, 2009, 2:12 pmGranite26 says:
Amen...
If we believe that as soon as we drop racial discrimination laws everything will go back to pre-60s, what’s the point of creating the laws in the first place?
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December 17, 2009, 2:12 pmDilan Esper says:
To continue this analogy: how many lawyers here would be comfortable with the government (not their bosses, not their other law partners) requiring them to violate their consciences in legal representation in the name of non-discrimination? Should a pro-choice advocate be forced to represent NARAL and the NRLC on an equal basis?
No, but lawyers are supposed to not discriminate based on protected classes. In other words, we can reject a litigant seeking to declare a constitutional right to gay marriage, but we aren’t supposed to reject a litigant who has a dispute with his landlord over the habitability of his apartment where we would otherwise take the case purely because the litigant is gay.
But again, the reason for this is because there is a pretty strong expressive content to legal representation and thus it would be a strong burden to force, say, a Christian conservative lawyer to argue for a right to gay marriage.
But a wedding photographer just takes pictures. He or she really isn’t expressing anything at all. Nobody’s going to look at a wedding photograph and say “aha! the photographer endorses gay marriage!” So the burden on free expression is minimal.
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December 17, 2009, 2:41 pmDilan Esper says:
(Clothing designers have to deal with knockoff copies because clothing is not “speech.”)
Actually, fashion design is a lot more expressive than photography. I think the wedding photographer should lose but if there were a case involving a homophobic fashion designer (probably a contradiction in terms, of course, but let’s just assume it :) ) who received an order to design some pro-gay marriage t-shirts, I might actually rule the other way (depending on how much creativity and expressiveness the order called for).
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December 17, 2009, 2:43 pmKen Arromdee says:
Plans for a deck, and building one, are normally not expressive activities. Even if it’s a creatively designed deck that is expressive, the message is probably just “this deck looks nice” and not approval of the things done there. In the unusual case that the deck was designed to send such a message (say, a deck with engraved images of the unacceptable activity), then it would indeed be forced speech and the builder should not have to design it.
Whether he can be forced to build it if he didn’t design it is a tricky question. It’s tempting to say that following a plan is a mechanical activity, not speech, but consider some hypotheticals:
Someone writes a speech about how his God sends people to Hell, and you don’t believe that, and he tries to hire you to read the speech in public. Are you allowed to refuse, or is that religious discrimination? (Assume the audience knows that you don’t necessarily agree with it.)
A television station refuses to air a religious TV show. Are they discriminating, since they’re not being asked to speak, just to spread someone else’s speech?
I wouldn’t call either of these discrimination. Even if the speech was created by someone else, helping to spread it is still speech by you.
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December 17, 2009, 3:00 pmdweeb says:
I haven’t read ALL the comments, but the first few seem to miss a distinction. Unlike Heart of Atlanta, etc., they didn’t refuse to sell like services to a particular kind of customer — they refused to sell a particular type of service. As far as I know, they never said they would refuse to sell their services to, say, gay parents wishing to provide traditional wedding photography as a wedding present to their straight daughter. Nor has anyone asserted that they would have readily contracted with a straight parent to provide photography to a SSM ceremony. This isn’t a refusal to do business with a type of customer, but rather declining to offer for sale a type of service which a certain type of customer USUALLY, but not strictly, tends to seek.
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December 17, 2009, 3:08 pmChris Travers says:
Ken:
It might be. Certainly aspects of the deck might be expressive. For example, the designer might choose to follow postmodern styles, or go for a colonial look. However, the difference is that they are limited to, well, producing the result.
I would have the same problem if the state said that deck designers MUST offer colonial deck designs to all customers. At that point, I think it is reaching deeply into expressive elements of the job.
However, the right to control one’s expression terminates when it is transferred to another party. So saying “the architect MUST design a deck along the following stylistic lines even though he says he doesn’t want to do so artistically” is different from saying “you must be willing to design a deck for a gay couple just as you would for a straight couple.” I.e. the deck is independent of the customer to a large extent.
However a photograph OF a customer is not independent in the same way. A photograph of a customer’s life event is likely to be both extremely expressive and personal, and it is tightly bound with the delivery of the service in a way that designing a deck is not.
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December 17, 2009, 3:50 pmDilan Esper says:
I haven’t read ALL the comments, but the first few seem to miss a distinction. Unlike Heart of Atlanta, etc., they didn’t refuse to sell like services to a particular kind of customer — they refused to sell a particular type of service. As far as I know, they never said they would refuse to sell their services to, say, gay parents wishing to provide traditional wedding photography as a wedding present to their straight daughter.
The problem is this sort of thing doesn’t tend to hold if the facts give rise to an inference of discriminatory intent.
Imagine, for instance, a recording studio who did not formally refuse to rent its space to black artists, but instead prohibited any hip-hop, soul, jazz, or R&B from being recorded there. If there was basically any evidence at all that the owner was a bigot, I suspect a court would have no problem finding discrimination in contracting in that situation.
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December 17, 2009, 4:40 pmChris Travers says:
Dilan:
On the other hand, if you made antisemitic statements, would that make your non-kosher sandwish shop guilty of discrimination against Jews?
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December 17, 2009, 5:45 pmBrian K says:
This analogy fails for two simple reasons. the photographer hired herself out as a wedding photographer, not a heterosexual only wedding photographer. in your analogy the restaurant is advertising itself as a vegan restaurant and thus need to serve vegan food to everyone who wants it. it also fails because the restaurant is not refusing service to non-vegans. it will sell vegan food to anyone who wants it. the photographer is refusing to sell the same service to people based on the sex of their partner.
this type of failed analogy has appeared quite often above.
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December 17, 2009, 6:12 pmdweeb says:
Exactly, and I might also note that the Country Music Awards prominently featured a black artist.
One plays to one’s strengths and offers services one knows. The failure of a victim class to desire those services is not one’s problem.
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December 17, 2009, 6:19 pmdweeb says:
It wasn’t a wedding — I believe all the relevant documents described it as a commitment ceremony. All the even remotely applicable dictionary entries for ‘wedding’ reference marriage, and under NM law, that element was missing.
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December 17, 2009, 6:39 pmChris Travers says:
Brian K:
Suppose I start a sandwich shop. Once you get inside you notice that every item on the menu has either:
1) Shellfish
2) A combination of meat and cheese, or
3) pork
The menu states clearly that all sandwiches served will meet these criteria. If you want a sandwich which does not contain shellfish, does not contain pork, and separates meat and dairy, you will have to go somewhere else. I further advertise a “Kosher clam and cheese bacon burger.”
I am not refusing to seat practicing Jews. I am, however, going out of my away to mock Jewish dietary restrictions and ensuring that nobody trying to even keep some semblance of a kosher diet will eat at my place.
Given that courts have thus far been barred from deciding what is kosher (and therefore by my reading, no false advertising claim can be made against my most unkosher “kosher” sandwich)...
Clearly the menu in this sandwich case would be expressive, and the clam and cheese bacon burger, as a parody of kosher rules, would be especially so. Would you argue that the business, since it is open to the public, is engaging in impermissible conduct which should be illegal?
Similarly if the “wedding” photographer agrees to show up but sends a timely policy to the couple saying “if you hire me, I won’t photograph same-sex couples in any sort of romantic way” then how is that different?
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December 17, 2009, 7:01 pmBrian K says:
Chris,
How in the world are those examples even remotely similar to this case? They’re worse analogies than the one I originally criticized.
Explain how they’re applicable and i’ll happily explain why you’re wrong.
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December 17, 2009, 10:31 pmBrian K says:
Similarly if the “wedding” photographer agrees to show up but sends a timely policy to the couple saying “if you hire me, I won’t photograph same-sex couples in any sort of romantic way” then how is that different?
then she is violating the contract that she herself signed and should rightfully be sued for breech of contract.
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December 17, 2009, 10:33 pmChris Travers says:
Brian K:
The question is whether incidentally discriminatory control over artistic or expressive elements in running a business translate necessarily into discrimination that should fall outside first amendment protection.
For example consider Sambo’s Restaurant chain which was the subject of a number of lawsuits over public accommodation harassment due to their choice of name (which was oddly unrelated to the homonym and racial slur, though how you get a racial slur about African-Americans from a story about a Tamil child, I have never been entirely sure).
Where do you think the line should be drawn?
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December 18, 2009, 12:29 amStephen says:
What I notice is that the market takes care of discrimination quite well. The nonrational choice to discriminate will work against the discriminator with lower profits. Thus, the person will be forced to make the internal decision that discrimination is wrong and have a change of heart. When laws are passed, the discriminator can always then say that the ubiquitous “Man” is making him change against his will. Sure, it takes patience, but it’s the better way. It’s partly an economic issue.
That’s one reason why, in my opinion, Jim Crow laws were wrongfully passed. Integration was working through the market and the people in charge were losing power naturally; thus, they needed the hand of government to artificially keep their way of life. When the government gets in on either side beyond basic rules of abolition, it begins to let racist people avoid the automatic market discipline that is a whole lot better of a teacher than the law in many instances.
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December 18, 2009, 10:37 amShelbyC says:
Well, having a job means that one decides to make tradeoffs, you decide to to some things you find distasteful in exchange for some other benefit. But having the option to decide whether or not to make those tradeoffs is what distinguishes “having a job” from “being a slave”
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December 18, 2009, 5:28 pmDavid Armor says:
Taking a photograph is not “speech” either. Wedding photographers aren’t artists. They’re technicians.
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January 17, 2010, 6:12 pm