I want to keep the arguments somewhat separate, so this is a separate post
dealing with commercial speech.
Note that Pittsburgh Press (1973) (holding constitutional a prohibition on sex
discriminatory classified ads for jobs) treats the ads as commercial speech
entitled to only limited First Am
In response to Marci:
Suppose a newspaper refused to list Roman Catholic services in its religion
section, in which it lists churches, synagogues and other houses of worship
along with the time of their services. The owner of the newspaper says that
the Catholic church is a pernicious organiz
I was speaking more to the religion claims. The Free Speech analysis is
much more clear (even as I think this is closer to *Wooley *than the Court
claims).
Having said that, supporting the war effort of the United States of America
would be a rational basis to mandate photographers to do what I'v
It would have come out the same way in NM without Lawrence, in my opinion.
Look, you said that the civil rights context was irrelevant to the court's
logic. That's just wrong. The court's logic seems to be precisely that the
purpose and effect of the application of the civil rights statute ch
Ah; you misunderstand. Of course in one respect it is a civil rights
issue, since the statute is about human rights. However, if it was truly a
civil rights issue, the case would have come out the same way without the
law in question. Are you suggesting that if *Bowers* were still good case
law
>From the majority opinion:
The Barnette Court noted that the dissenting students’ choice not to salute the
flag “[did] not bring them into collision with rights asserted by any other
individual.” 319 U.S. at 630. That is not the case here, where Elane
Photography’s asserted right not to serve
Well, it would also violate the 13th Amendment, but who's counting.
--
Prof. Steven D. Jamar vox: 202-806-8017
Director of International Programs, Institute for Intellectual Property and
Social Justice http://iipsj.org
Howard University School of Law fax: 202-806-
Of course the civil rights point matters. And the court said as much.
On Aug 23, 2013, at 8:55 AM, "Michael Worley"
mailto:mwor...@byulaw.net>> wrote:
Right; of course the statute I proposed would not fall under the realm of
"civil rights," but I do not believe the arguments hinge on that poin
FWIW, I don't think this is an easy case nor one that our legal doctrine or
structures handles well. I think the best way for a photographer to handle
this is just to refuse for no reason. That is not the same as doing it for an
illegal reason. I am not satisfied that that is a good solution
And I tried to be clear that I was talking about a private contractor
(Lockheed Martin-esque).
On Fri, Aug 23, 2013 at 6:56 AM, Marci Hamilton wrote:
> Let me clarify: the issue in New Mexico is a conflict between the civil
> rights of same sex couples and for-profit photographers who hold them
Right; of course the statute I proposed would not fall under the realm of
"civil rights," but I do not believe the arguments hinge on that point.
Thus, New Mexico could pass a law requiring people to participate in
pro-war activities (in this scenario, photography) if they use a business.
It may
Can someone who thinks the decision wrong explain the difference between this
case and an interracial marriage or a Catholic photographer refusing to do a
Jewish or Muslim or Hindu wedding? What is the principled distinction? I
can't find one.
What is the difference between this and a restaur
Let me clarify: the issue in New Mexico is a conflict between the civil rights
of same sex couples and for-profit photographers who hold themselves out as a
public accommodation.The govt does not have civil rights.
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Where is the potential civil rights violation in this hypothetical?
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Aug 23, 2013, at 8:45 AM, Michael Worley wrote:
> Are people who support the decision in New Mexico also will
I have some modest sympathy for the speech argument. None at all for the
religious discrimination argument.
Why someone would want a photographer who doesn't want to do it is beyond me,
but then I take photography more seriously than most and we paid to have one of
the best wedding photographe
Are people who support the decision in New Mexico also willing to support a
law forcing photographers who object to war to take pictures of army battle
drills if hired by a government contractor? If not, what is the
difference?
On Thu, Aug 22, 2013 at 10:20 PM, Volokh, Eugene wrote:
>
And if the NYT refused to include same- sex couples in its wedding section, it
would be sued. Or mixed race couples. Or to sell to same-sex couples.
Except for the narrow issue in Hosanna Tabor, First Amendment rights do not
immunize you from the civil rights laws.
Marci A. Hamilton
Verk
Wedding photography is speech for money, and a lot of it. The photographer
who depicts the wedding in a non- joyous manner is not going to get paid, is
going to receive terrible reviews online, and even be boycotted. She or he
will find themselves with no wedding jobs. The photographer who
Wait a second: For whatever reason the NYT exists, whether an altruistic free
expression of news, or as a greed capitalist oppressive tool of The Man, it's
still illegal to refuse to sell papers to someone because they are
gay/straight/black/white/Catholic/Jewish/Iranian(whoa, are there any emb
Of all the wedding photogs I know, Mark, not one of them thinks that taking
pictures of weddings is their art. Every one of them says that it's how they
pay the bills and get enough money to buy the next big NikoCanon 5DMk800D. But
then, I don't know every wedding photographer. As for free ex
Not all couples are fortunate enough to have that sort of leeway, Brad. I've
heard of couples who take a very long time deciding between two photographers,
and usually settle on the one that's cheaper. In fact, the big thing these
days is "Hey, let's get Uncle Bob to bring his new Nikocanon 5D
Of course it's also very clear that getting paid for your expressive efforts
doesn't reduce the level of 1st Am protection you are entitled to. The NY
Times, for example, still sells a few papers, and they charge for on-line
access, too, as my monthly credit card statement attests.
Mark Scarber
We may have to agree to disagree on the role of the wedding photographer.
My wife and I both considered the wedding photographs to be part and parcel
of the event and the photographer to be a member of the wedding party who
was most assuredly there to celebrate with us. We would not have chosen a
Again, as a photographer, once you put your unique artistic style on the
market, it is a business. If you can't provide your unique artistic style to
everyone, and insist on withholding it based on religious belief, then you need
to offer your unique artistic style free to friends and family;
It seems to me, the more selective they are, (1) the less likely they are
covered by the statute (the predicate for the 1A claim) and (2) the more the
speech is their own (which does seem relevant to a compelled speech claim).
On Aug 22, 2013, at 11:23 PM, "Volokh, Eugene"
mailto:vol...@law.ucl
On Aug 22, 2013, at Thu, Aug 22, 9:06 PM, "Brad Pardee"
wrote:
> This is not correct. The issue is neither the customers' identity or the
> free market. It is about the merchant being required to participate in
> events that they cannot participate in by virtue of the tenets of thier faith
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