I was about to send this post when Eugene's came in. To some degree it makes similar points. And it makes some points that are similar to Steve's helpful post.
With regard to whether there should be a "creative expression" exception to antidiscrimination laws, as Alan frames the issue: Of course another way of looking at this is the extent to which there should be exceptions made to the very strong 1st Am protection against compelled speech, outside the area of commercial speech. We are willing to force people to engage in war and kill others in order to protect our nation. Why not then require people to swear loyalty to the nation? On a slightly different note, we all know that the complainants in Elane Photography did not really have their hearts set on having Elaine Huguenin take their photos. Who would really want someone to take celebratory photographs of an event that the photographer thought deeply wrong? No. This was an effort to engage in public "education" (or private re-education) by requiring Huguenin to bow down or go out of business. Does anyone think there weren't other photographers the complainants could have gone to? So if this is really about inculcating a point of view -- and delegitimizing another -- doesn't the state have a very strong interest in inculcating patriotism and in delegitimizing pacifism? So much for Barnette. However creative they may be, salespersons (including Alan's Uncle George) who are trying to persuade customers to buy a product are engaged in commercial speech, or something like it: they are in effect proposing a commercial transaction. Artists (including wedding photographers) are not. We all know that speech is not commercial speech just because the speaker is paid. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 15, 2015, at 3:08 PM, "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: Alan: What do you thank about freelance writers? Say that someone generally takes freelance gigs to write a wide range of press releases, technical manuals, and pretty much anything else that comes in the door. Along comes the Church of Scientology, asking the person to write a press release for their latest event. Say that the press release is not “commercial speech,” but fully protected religious advocacy. It’s just that this writer doesn’t want to create this sort of advocacy, for a religion that he views as evil and corrupt. He says no, and the Scientologists sue him for religious discrimination. I would think that he should a First Amendment right not to be compelled to write religious advocacy that he doesn’t want to write. Am I mistaken on that? As to some of the other analogies, I don’t think they quite work. Some involve commercial speech, which is treated differently, compare Pittsburgh Press. The closest examples involve lawyers and doctors, but those are treated differently, for complicated reasons having to do with tradition and with the professionals’ monopoly, to the point that I don’t think they should be much of a precedent for other speakers. One piece of evidence: Lawyers have historically been required to defend criminal defendants, for free and regardless of their preferences – not just by antidiscrimination law, but by ad hoc court orders. Surely if a government agency just ordered a freelance writer to write a press release for some worthy organization, on the grounds that they really needed the services, we’d agree that this is unconstitutional compelled speech compulsion, right? If so, then I think this shows that (rightly or wrongly) lawyer-client speech and doctor-client speech is broadly subject to much more compulsion than freelance writing, photography, etc. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein Sent: Sunday, February 15, 2015 2:16 PM To: Law & Religion issues for Law Academics Subject: Re: Wedding photographers as creators of art I think Steve's focus on the difficulty of drawing distinctions in this area is helpful, but it also demonstrates the potential range of autonomy and/or expressive exemptions from civil rights laws. Let's put prostitution aside for the moment since it involves a form of intimacy that is so personal that commercializing it commonly results in criminal sanctions. I think ministers practicing their religion are also a unique constitutional category. But it is a very large step to move from these two special circumstances to the general idea that jobs and services with a personal autonomy or creative expressive dimension should be exempt from civil rights laws. lots of jobs and services can be characterized as intimate or personal. Legitimate massage therapists and physical therapists, barbers and hair stylists, doctors and nurses, psychotherapists and child care providers, home care providers for the elderly or similar care provided in assisted living facilities -- just to name a few. The list of jobs and services with an expressive and creative dimension is much larger. Defined broadly, speech covers persuasive and informative expression as well as artistic expression. But what is the limit here? Are sales and advertising services exempt from anti-discrimination laws? (And if you don't think sales involves both personal expression and creativity you never saw my Uncle George talk to neighborhood customers in the family hardware and housewares store in the Bronx.) Laws is an expressive business. A lot of the practice of medicine involves talking and listening often about very personal problems -- and being an effective family physician involves creative problem solving and the effective communication of information. Architecture is expressive and creative. So is teaching. (Most of us recognize that we are performers in the classroom to some extent.) Again, the list could go on. Generally speaking, in a liberal society, we allow discrimination in employment and the provision of services with regard to all of these activities almost without limit. We pass anti-discrimination laws because we think that for these certain limited categories -- such as race, religion, gender, sexual orientation -- the conventional liberal system doesn't work right and produces unacceptable results. That is obviously a constraint on autonomy and creative choice. But it is a constraint we accept if we are serious about anti-discrimination principles. So the question for me isn't whether these is a personal autonomy or creative expressive dimension to services like those provided by Elane Photography. It is, putting religion aside, whether there is some good reason to treat creative, expressive, personal wedding photographers differently than all of the jobs and services I described above and many more. Or are we willing to accept this large an exemption from civil rights laws (again leaving religion aside) on generic personal autonomy and expressive and creative freedom grounds. Alan ________________________________
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