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 <religionlaw-boun...@lists.ucla.edu>
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
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 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"
<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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