Re: Wedding photographers and freelance writers

[Alan E Brownstein]

​All good points, but I think they open up more issues. I only have time for a 
few brief comments before I have to forsake the list for the rest of the week 
because of other commitments. (I will read up on the posts I missed later.)


First, if we are going to focus on existing doctrine, "rightly or wrongly," 
then I don't think we can simply dismiss commercial speech as being beyond the 
reach of compelled speech exemptions. If I remember correctly the Court said in 
United Foods (I think incorrectly) that there was no basis for distinguishing 
commercial speech from non-commercial speech in compelled speech cases and 
while United Foods has been distinguished it has not been overruled. The case 
involving data mining and drug companies (the name escapes me) demonstrates the 
strength of commercial speech doctrine today. If commercial speech activity is 
not categorically excluded from the exemption category, we have to consider a 
lot more possible exemption circumstances.


Second, if compelled speech exemption is based on compelled content and not 
compelled viewpoint, I'm not clear that the reason why the writer does not want 
to communicate the message should matter. But if it does, and a technical 
writer can refuse to write a technical description of how birth control pills 
operate because the writer believes that doing so may imply some endorsement of 
these kinds of birth control, then I don't see why the same writer could not 
decline to write a description of a product produced by female inventors or 
manufacturers or to work with a female client because he did not want imply 
that women were capable of such achievements without male supervision. (Let's 
assume the writing identified the client and the gender of the company's 
leadership.)


Third, because the issue I am concerned with is the difficulty of line drawing, 
the fact that Elaine Huguenin would have no objection to talking photographs  
of a lesbian does not solve the problem. I see no obvious line between artistic 
photographs of a wedding and artistic photographs of a family or a single 
individual. Surely portrait photography can be artistic as well. Can a family 
photographer refuse to take pictures of a gay couple and their children because 
doing so implies validation of their status as a family. Can a portrait 
photographer refuse to take picture of a gay man or an African-American woman 
because the photographer believes his portraits convey a message of self worth 
and that the subject is worthy of respect and admiration -- and that gays and 
non-whites deserve no such respect. (My talent agency photography example from 
a prior post raises a similar issue.)


Fourth, I'm not sure that I agree with Eugene's suggestion that if the First 
Amendment protects against restricting some expressive or arguably expressive 
activity, it also protects against compelling that activity. I'll have to think 
about it. The converse argument isn't true. Because the government can restrict 
certain speech, such as obscenity, that does not mean that it can compel people 
to express obscenity. Further, it is not clear to me even under current 
doctrine that because the First Amendment protects certain commercial speech 
from restrictions, that the government is equally prohibited from compelling 
the expression of such commercial speech. If the government cannot prohibit 
retailers from advertising the price of certain goods, does that mean that it 
cannot compel retailers to clearly state the price of these same goods in their 
advertisements?


Fifth, and finally, I'm just not sure that the First Amendment prohibits a town 
from limiting the number of family portrait studios in the community -- 
although I think a town would be stupid and perhaps irrational to do so.


Alan




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Sunday, February 15, 2015 10:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Wedding photographers and freelance writers

   1.  Say that a solo technical writer is asked to do technical 
writing describing the proper use of abortion pills, which are indeed used 
exclusively by women.  I would think that the technical writer should have 
every right to refuse to write that, especially if he thinks (reasonably) that 
even a non-advocacy piece describing such use implicitly endorses the propriety 
of such use.  Likewise if a technical writer refuses to write a manual for 
proper use of Scientology “e-meters.”  (It’s hard for me to imagine why a 
technical writer might reject a job based on the sex of the client or of 
product manufacturers, so I’m focusing on a person’s refusing a commission to 
produce expression because he disapproves of the content of the expression, 
just as Elaine Huguenin rejected the wedding photography based on the fact that 
it depicte

RE: Wedding photographers and freelance writers

[Volokh, Eugene]

   1.  Say that a solo technical writer is asked to do technical 
writing describing the proper use of abortion pills, which are indeed used 
exclusively by women.  I would think that the technical writer should have 
every right to refuse to write that, especially if he thinks (reasonably) that 
even a non-advocacy piece describing such use implicitly endorses the propriety 
of such use.  Likewise if a technical writer refuses to write a manual for 
proper use of Scientology “e-meters.”  (It’s hard for me to imagine why a 
technical writer might reject a job based on the sex of the client or of 
product manufacturers, so I’m focusing on a person’s refusing a commission to 
produce expression because he disapproves of the content of the expression, 
just as Elaine Huguenin rejected the wedding photography based on the fact that 
it depicted a same-sex wedding and not based on the fact that a particular 
photographed person was lesbian, and just as Hands On Originals rejected a 
T-shirt printing job based on the fact that it contained a Lexington Pride 
Festival message.)

   2.  Architecture and dress (setting aside messages on the dress) 
are, rightly or wrongly, generally not seen as inherently expressive for First 
Amendment purposes.  That’s why the government can require demanding licensing 
regimes for architects but not for writers, and why the courts have not viewed 
dress codes as implicating the First Amendment based on restrictions on certain 
garments.

3.  One way, I think, to tell whether the First Amendment protects against 
compelling someone to create something is to ask whether it would protect 
against restricting the person from creating something.  If the city wanted to 
allow only one bakery in town, it could do so (see the Slaughterhouse Cases); 
likewise if it wanted to have a taxi-like medallion system for bakeries, just 
to protect incumbent businesses.  Likewise, as I noted, a state can require 
hard-to-get licenses for architects.  But I don’t think a city can set up a 
legally enforced monopoly or oligopoly for freelance writers, photographers, 
painters, or singers.

4.  Even a First-Amendment-protected business generally doesn’t have a right to 
refuse to hire someone simply because it “believe[s] these individuals will 
necessarily bring an undesired perspective to the firm’s work.”  See Associated 
Press v. NLRB.  But I do think that a business would have a First Amendment 
right to, say, refuse to write any press releases for Scientologists, and not 
allow anyone who works for the business to take such assignments in his 
capacity as an employee of the business.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Sunday, February 15, 2015 6:28 PM
To: Law & Religion issues for Law Academics
Subject: Re: Wedding photographers and freelance writers


​​
I agree with Eugene that the free lance writer who doesn't want to work on an 
advocacy piece is one of the strongest cases for an expressive exemption. But 
what if we are not talking about an advocacy piece. May a small company that 
does technical writing exclusively reject a female client who wants it to 
describe a product manufactured by women and used exclusively by women? (I 
don't think technical writing would be considered commercial speech.) What 
about architects who discriminate against religious clients? (Again leaving 
religion exercise accommodations out of the analysis.) Or is a fashion designer 
engaged in a sufficiently expressive activity so that she could refuse to hire 
African-American models because that would distort the message her designs were 
intended to communicate? What about talent agencies? May a talent agency that 
will photograph clients for portfolios as part of their overall service refuse 
to accept gay and lesbian clients because they do not want their artistic 
photographs to glorify an "immoral lifestyle."And does this expressive 
exemption extend to association and hiring. Can a small firm of free lance 
writers refuse to hire a Scientologist or a woman because they believe these 
individuals will necessarily bring an undesired perspective to the firm's work? 
Even eliminating law and medicine and any kind of arguably commercial speech 
activity from the class of potential exemptions (which Eugene I think 
appropriately excludes from his expressive exemptions category), I still think 
there are a lot of hard cases. I'm not sure why a wedding photographer falls 
within the exemption category and other services do not. (By the way, I assume 
we are discussing constitutionally required exemptions and not discretionary 
legislative accommodations which is another question.)

Alan



On Feb 15, 2015, at 3:08 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
   Alan:  What do you thank about freelance writers?  Say tha

Re: Wedding photographers and freelance writers

[Alan E Brownstein]

​​

I agree with Eugene that the free lance writer who doesn't want to work on an 
advocacy piece is one of the strongest cases for an expressive exemption. But 
what if we are not talking about an advocacy piece. May a small company that 
does technical writing exclusively reject a female client who wants it to 
describe a product manufactured by women and used exclusively by women? (I 
don't think technical writing would be considered commercial speech.) What 
about architects who discriminate against religious clients? (Again leaving 
religion exercise accommodations out of the analysis.) Or is a fashion designer 
engaged in a sufficiently expressive activity so that she could refuse to hire 
African-American models because that would distort the message her designs were 
intended to communicate? What about talent agencies? May a talent agency that 
will photograph clients for portfolios as part of their overall service refuse 
to accept gay and lesbian clients because they do not want their artistic 
photographs to glorify an "immoral lifestyle."And does this expressive 
exemption extend to association and hiring. Can a small firm of free lance 
writers refuse to hire a Scientologist or a woman because they believe these 
individuals will necessarily bring an undesired perspective to the firm's work? 
Even eliminating law and medicine and any kind of arguably commercial speech 
activity from the class of potential exemptions (which Eugene I think 
appropriately excludes from his expressive exemptions category), I still think 
there are a lot of hard cases. I'm not sure why a wedding photographer falls 
within the exemption category and other services do not. (By the way, I assume 
we are discussing constitutionally required exemptions and not discretionary 
legislative accommodations which is another question.)

Alan



On Feb 15, 2015, at 3:08 PM, "Volokh, Eugene" 
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] 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 
styl

Re: Wedding photographers and freelance writers

[Scarberry, Mark]

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" 
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] 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, do