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" <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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