Let me mention again the hypothetical I posed in my earlier post, and ask for the reaction of those who think the New Mexico Human Rights Commission's decision is constitutional. Maybe I'm mistaken, but my sense is that there weren't many responses to it, and I'd love to see more, again especially from people who think the Commission's decision doesn't violate the First Amendment.
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 materials, and the like -- for his same-sex marriage planning company, or his Scientology book distribution company, or whatever else.
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, or whatever else to which the materials would be related? Or do you have a First Amendment right to choose which words you write and which you decline to write? If you do have such a right, why shouldn't Elaine Huguenin have the same right as a photographer?
One response I saw a few people make is that wedding photography isn't really artistic, the way that creative photography is. Well, I suppose that some will say that writing press releases or Web pages on commission isn't really literary or political, the way that writing fiction or opinion columns is; that's why I chose this particular example. Yet I take it that even being compelled to write bland, relatively generic copy about the virtues of some same-sex marriage planning company would be seen as a speech compulsion. Why wouldn't being compelled to take bland, relatively generic photographs likewise qualify (especially since taking and selecting good photos does involve at least some artistic decisionmaking)?
Another response was that there's no First Amendment issue with imposing nondiscrimination obligations on lemonade sellers, chefs, florists, and the like. But I take it we would see such an issue with imposing such obligations on writers, no? Why isn't a photographer far closer to a writer for First Amendment purposes, given that both photography and text are traditionally recognized as First-Amendment-protected media (because of their capacity to convey facts and ideas)?
One response pointed out that lawyers, who speak for a living, are required not to discriminate in choice of clients. But the First Amendment rights of lawyers practicing law are considerably constrained, see, e.g., Gentile v. State Bar of Nevada, and especially when it comes to choice of clients; for instance, courts generally still have the power to appoint lawyers to represent indigent criminal defendants, even if the lawyer objects on ideological grounds. Whatever the proper rule for lawyers should ultimately be, I don't think that the constitutionality of certain speech compulsions for lawyers -- officers of the court who have been therefore treated as something distantly kin to government employees -- tells us much about similar speech compulsions imposed on photographers, writers, painters, musicians, and others.
So tell me, please, if you think the Commission's decision is constitutional: Could the freelance writer be compelled to write copy for the same-sex marriage planning company, or the Scientology book distribution company? If the answer is "no," then what exactly is the difference between the writer and the photographer?
Related Posts (on one page):
- The New Mexico Human Rights Commission Refuses to Consider Religious Freedom Objection:
- The Breadth of the New Mexico Human Rights Commission's Rationale:
- Right To Choose Which Photographs You Create:
- The ACLU and the Elane Photography Case:
- Religious Exemptions and the Elane Photography Case:
- Legal Requirements That You Write Things or Create Photographs:
- First Amendment and Photography/Writing/Publishing/Book Distribution for Money:
- Religious Accommodations and the Elane Photography Case:
- Photographers Denied the Freedom To Choose What They Photograph: