Compelling Speech by Commercial Photographers, Freelance Writers, Musicians, and So On

I just finished reading the New Mexico trial court’s Elane Photography decision, and thought I’d blog a bit about it. Let me begin with the compelled speech question.

Elane Photography — a husband-and-wife company in which the wife, Elaine Huguenin, is the head photographer (and I think the only routine photographer) — refused to photograph a same-sex wedding. This, the court held, violates state antidiscrimination law, since commercial photographers, as well as “film editor[s], commercial music composer[s], commercial musician[s], graphic designer[s] or any other creative professional[s] whose services are available to the public,” are treated as “public accommodation[s]” under New Mexico law. And the refusal to photograph same-sex weddings constitutes sexual orientation discrimination in public accommodations, which state law bans.

But, Huguenin says, requiring me to photograph same-sex weddings on the same terms as other weddings compels me to create expressive works. The First Amendment presumptively bars speech compulsions as well as speech restrictions; creating photography is a form of speech; therefore, I can’t be compelled to create photography, any more than I can be compelled to say things or display things on my property. Not so, says the court:

Plaintiff is not being asked to represent the government’s position …, nor to alter its message …. Plaintiff’s message is not and has never been about same-sex marriages. Rather, its message is fine photography of special moments. Unlike the parade [involved in Hurley, a case in which the Supreme Court held a parade organizer could not be legally compelled to let a gay/lesbian/bisexual group's float into its parade -EV], Plaintiff’s final message is not its own. Instead, Plaintiff is conveying its client’s message of a day well spent. As Defedant Willock states, Plaintiff is really a conduit or an agent for its clients. As such, the Court’s finding that Plaintiff cannot refuse to photograph same-sex couples during a commitment ceremony is not an infringement of Plaintiff’s right to freedom of expression.

1. The first thing we should note is the breadth of the court’s reasoning: It applies not just to photographers, but also to the musicians, composers, graphic designers, film editors, and other creators that the court mentioned earlier in the opinion. It would also apply to freelancers who write press releases, advertising copy, and so on. And I take it that it would also apply to bookstores, movie theaters, and other such distributors of others’ works; the authors and filmmakers aren’t “clients” of such distributors, but still the distributors’ “final message is not [their] own,” and they are “really a conduit” for others’ work.

I’ve heard some people argue that wedding photography (as opposed to artistic expression) isn’t really expression, because it’s too banal and straightforward. I doubt that this is so, but in any event it’s clear that the court’s reasoning applies without regard to the supposed banality of the expressive work.

2. But is the court’s reasoning, broad as it is, correct? Is it permissible for the law to require freelance writers, composers, artists, editors, and the like to create speech that they don’t want to create? Might it even be permissible for the law to require other conduits, such as bookstores and movie theaters, to distribute speech that they don’t want to distribute? (I use “speech” here in the standard First Amendment sense, which includes music, pictures, video, and the like.)

I don’t think so. After all, despite the court’s attempt to distinguish Wooley v. Maynard — the license plate motto case — a license plate motto isn’t the driver’s own (and certainly wasn’t seen that way before the Court recognized a driver’s right to obscure motto). The drivers in Wooley were simply conveying the government’s message; they were a conduit for the government. Yet the Court held that “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind,’” and that the Maynards had a right “to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.”

Now it’s true that here the government isn’t specifically requiring people to carry a particular string of words; and while a same-sex wedding may represent “an idea” (actually, many ideas), photographs of the wedding don’t convey the idea quite as specifically as the “Live Free or Die” on the license plate did. Nonetheless, Huguenin is being compelled not just to foster but to create a particular sort of expression — expression celebrating a same-sex union — that she finds morally objectionable.

Nor does it matter, I think, that Huguenin is in business. The Court has long held that speech retains full protection even when it’s sold for money. (Fully protected speech products such as newspapers, books, and the like are routinely sold for money.) The freedom from compelled speech applies to such sold-for-money media as well as to other media. The right not to create speech that you disapprove of should likewise extend to the right not to create such speech for money as well as the right not to create such speech for free. I take it, for instance, that the Maynards’ right not to display the “Live Free or Die” motto would apply even if the Maynards used their car to deliver pizzas or drive to commercial photography assignments. The same should extend to the right not to create works you disapprove of.

Wooley did involve the display of speech, while this case involves the creation of speech. But that should cut in favor of Elane Photography, rather than against: It seems to me that having to create speech, using your own creative abilities and judgments as an artist, musician, writer, or what have you, is an even deeper “foster[ing]” of “an idea [you might] find morally objectionable” — an even deeper intrusion on “individual freedom of mind” — than is simply having to displaying what is clearly the government’s message on a government-provided license plate.

3. Finally, for those who disagree, let me ask (as I did in my posts on the Human Rights Commission decision): Say you’re a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials — press releases, Web site text, and the like — for a same-sex marriage planning company, a Scientology book distribution company, a state branch of the Socialist party, a company that gets its income through legal prostitution, or whatever else. (Note that some jurisdictions ban discriminate based on “political affiliation” and “source of income” as well as religion, sexual orientation, and the like.)

May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, political affiliation, or whatever else to which the materials would be related? That’s what the trial court decision seems to hold. Or do you have a First Amendment right to choose which words you write and which you decline to write?