June 5, 2012

Art must remain private – otherwise an artist is just a public accommodation [Darleen Click]

Which is what the New Mexico Court of Appeals is declaring in their ruling against Elane Photography.

So the New Mexico Court of Appeals held last week in the long-pending Elane Photography v. Willock (N.M. Ct. App. May 31, 2012). The court began by holding that the state law that bans sexual orientation discrimination in places of public accommodation applies to professional wedding photographers’ decisions not to photograph same-sex commitment ceremonies: Such photography businesses are “places of public accommodation” under the language of the law, and the discrimination between legally recognized opposite-sex marriages (New Mexico only recognizes such marriages) and same-sex commitment ceremonies constitutes discrimination based on sexual orientation.

The court then rejected the argument of the photographer (Elane Huguenin, the co-owner and principal photographer for Elane Photography) that penalizing her for not photographing such same-sex ceremonies was an unconstitutional “speech compulsion.” The First Amendment, Huguenin argued, has been repeatedly held to protect the right to speak as well as the right not to speak; and the right not to speak includes the right not to create artistic expression that one doesn’t want to create. And just as the First Amendment protects speech that is said for money (indeed, most books, newspapers, movies, and the like are created and distributed commercially), so it protects the right not to create certain artistic works for money, even if one is in that line of business. But the court disagreed. […]

It seems to me that the right to be free from compelled speech includes the right not to create First-Amendment-protected expression — photographs, paintings, songs, press releases, or what have you — that you disagree with, even if no-one would perceive you as endorsing that expression.

The comment section, including those in Eugene Volokh’s followup post seem to be fixated on two things (1) there is no “art” in photography – it is merely a mechanical service like providing a hotel room or serving a meal in a restaurant and (2) sexual orientation is a “protected class” – so one can refuse to take on as clients for any number of reasons but not gay people.

To the first point, obviously these judges have no understanding of photography.

To the second, I’m not a lawyer and this case is going to be kicked up the chain by the ADF, but this is, as far as I know, not really about the lesbians involved — the photographer is declining to participate in an activity with which she disagrees. I suspect that if someone attempted to hire her to photograph a polyamorous-commitment ceremony, she would refuse to do that too. The photographer wasn’t discriminating on the basis of what these women are but what they were doing.

It’s not a complete analogy, but when a doctor or nurse refuses to participate in the activity of abortion, they are not discriminating against the women (illegal sex discrmination) – and there is no indication they are refusing her other care – but refusing to participate in a specific activity.

Under this ruling, could an advertising company refuse to create an ad campaign for, say, the KKK? Fred Phelps? CAIR? e.g. if you don’t want to create a book, website, ad campaign, drawing, painting, for all comers to your business, then don’t be in [that] business.

Wow.

Posted by Darleen @ 7:48am
76 comments | Trackback

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Comments (76)

  1. …when a doctor or nurse refuses to participate in the activity of abortion, they are not discriminating against the women

    So you’d like to think. But you haven’t stumbled onto the end game, merely another step down the road.

    That which is not prohibited must be mandatory.

  2. I saw those articles yesterday, Darleen. I started to read them, but I got the idea that there was going to be some sort of giant justification made by Eugene and there was.

    I can’t read his reader comments often. Too much in-fighting and people trying to out-lawyer each other.

  3. Straight out of Canada, if I’m not misremembering a similar ruling.

  4. A woman with a camera is a “place of public accommodation.” Her decision of whether or not to make photographs recording a private event is not protected speech.

    I’m not sure when I last saw a decision with so much fundamentally faulty wrong analysis crammed into so simple a case. I hope that the judges win the legal profession’s equivalent of the Bulwer-Lytton prize on the same day that a higher court slaps them around with an embarrassingly sharp reprimand. And I hope that Ms. Huguenin is there to capture the looks on their faces when it happens.

  5. Do pissed off photographers, forced to accept unwanted work from clients to avoid prosecution or civil liability, take good photographs that are likely to please the client? I’m guessing not.

  6. pala

    It’s not like the s-s couple in this regard didn’t get another photographer they were entirely pleased with. They wanted to make Elane Photography “an example.”

    Say I’m a graphic designer that runs a t-shirt shop. Do I have to print t-shirts with pro-Nazi sayings? If I refuse, can I be sued for political speech discrimination?

  7. According to Volokh, there are several other photographers in this woman’s town who are willing to photograph commitment ceremonies. He also notes the the state constitution of NM forbids SSM.

    Who’s zooming who here?

  8. I got the idea that there was going to be some sort of giant justification made by Eugene and there was.

    I’m confused. Do you agree or disagree with the decision that a photographer’s product is not longer protected expression if she makes a buck off it?

  9. Come on, folks, I’m sure Ms. Hugenin was the only photographer in the area.

    Under this ruling, could an advertising company refuse to create an ad campaign for, say, the KKK? Fred Phelps? CAIR?

    1. Of course!

    2. You bet!

    3. NO, H8R, NO!!!!!!!

  10. Do you agree or disagree with the decision that a photographer’s product is not longer protected expression if she makes a buck off it?

    I disagree. My mother is an artist and if she agrees to paint your portrait (hypothetically, she is not a portrait artist) and you refuse to sit still or want a lewd portrait, she can give you back your deposit and tell you to get out of her studio.

    It’s your livelihood and you are allowed to follow your conscience. how else are we going to get such gems as “Piss Christ”, after all?

  11. OT: I am watching the Queen’s speech. The outpouring of support from her subjects is so wonderful. All the people out in the rain with their Union Jacks singing “God Save the Queen.”

  12. If it takes the skills and efforts of a trained individual other than yourself to do something (or cause something to be done, if you prefer), it isn’t a right, it is a service, and the one(s) providing that service have the RIGHT to opt out. (To do nothing, in other words.)

    But to then sue that person for exercising one of their rights, while not having a right of your own to counterbalance it? It’s no wonder that it takes this kind of pretzel logic to make it reach the pre-determined political outcome.

    Meanwhile locally, cops are actually refusing to arrest thieves, even going so far as to refuse to take reports of property crimes, “because they have bigger fish to fry”.

    In the words of the desk sergeant, “If it ain’t bleeding or got to do with kids, we ain’t got time for it.”

    When the legal system is not only incapable of rendering justice, but actively refuses to even try, I will leave it as an exercise for the student to guess what happens next.

  13. I will leave it as an exercise for the student to guess what happens next.

    Lemme guess: “When in the course of human events…”

  14. Why would you want a bigot to take pics at ur wedding? Not money well spent.

  15. One definition: “Liberty is the ability to say ‘no’ and make it stick.”

  16. There is no such thing as “judicial activism” for that term implies no direction to the rulings. What there is is left-wing Democratic Party activism acting under judicial color of authority.

    Here’s another one which has been discussed, but these particular words haven’t been seen till now.

    At one point in the hearing the judge asks Walker what if a “freak somewhere up in Oklahoma” does nasty things to Kimberlin. A little later he says, “You don’t get all these people from Oklahoma, Indiana, Wyoming, wherever the heck it is, and all of these past things.”

    Looks like Vaughey forgot to mention Montana and Texas. Seriously, does Judge Vaughey think that “freaks” come from primarily red states? If so, it says a lot about his mindset. On the other hand, that may be reading too much into it. Maybe he was just listing states off the top of his head. But then, why not use the term “freak” without associating it with any states?

    Strangely there was a “freak” from Indiana in the courtroom, but as a member of the protected class and brotherhood of Democrat activists the judge embraced his brother not the law.

  17. I can buy the wedding photographer as public accommodation argument.

  18. I’m not buying the idea that wedding pics are art

  19. There’s no expectation of artistry, just competence. It’s a different deal if you throw a small fortune at Annie Liebowitz or someone to create a kind of feel, but then you’re commissioning an actual artist to perform an artistic function.

  20. Speaking of speech, Patterico has transcript excerpts of the Walker/Kimberlin hearing up. I had mentioned reports that the judge said he didn’t care about Brandenburg, but what he actually said is worse than I imagined:

    Forget Bradenburg [sic]. Let’s go by Vaughey right now, and common sense out in the world.

    Judge Vaughey, that is. “The law? I am the law.” These tinpot pricks make me want to weep. And then puke. And then weep some more. And then do extremely naughty things.

  21. Sounds like a higher-lower, better-worse distinction to me, rather than a distinction of the act or behavior itself. There are really good carpenters and really shitty carpenters, but they’re all carpenters. This, under a sense of art as techne, not the modern sense of art as religion.

  22. How about we just let every service provider decide who to provide services to? The market will sort out whether that’s a good idea or not.

  23. Oops, I mean, the market will decide whether a business can survive being discriminatory.

  24. That’s a good point, sdferr. One that I shall have to ponder.

  25. Say I’m a graphic designer that runs a t-shirt shop. Do I have to print t-shirts with pro-Nazi sayings? If I refuse, can I be sued for political speech discrimination?

    Case 1: The Nazis ask you to print t-shirts saying nasty racist things.
    Case 2: The Nazis ask you to print t-shirts saying “Happy Birthday Bob.”

    Let’s say you refuse in both cases. Which is actionable?

  26. Do the “Happy Birthday Bob” shirts have little swastikas on them?

  27. No, the “Happy Birthday Bob” t-shirts are totally innocuous.

  28. I’m not buying the idea that wedding pics are art

    Have you seen what people pay for them? If it were simply a matter of capturing images of the event, your other brother Darrell could do it with his iPhone. It isn’t. Composition is everything.

  29. I foresee a thriving black market for wedding photography in New Mexico if the NMSC lets this ruling stand.

  30. Composition is everything.

    And lighting, and filters, and fill, and…

  31. “I’m not buying the idea that wedding pics are art”

    – So then I guess you’re really not for freedom of choice.

    “We reserve the right to refuse service at any time.”

    – Municipalities are given the right to control commerce through licensing, and can set standards based on safety and or potential harm to the public. As in liable laws, unless you can prove harmful intent or deliberate endangerment, and specifically, that you had no choice, and were forced into the situation, you lose.

    – This is the Left trying once again to have it both ways.

    – It will fail the same as Obamacare.

  32. Having been the subject of wedding photography, I would argue that a wedding photographer is at the very least a craftsman — and that a craftsman isn’t a public accommodation either. If a legislature can simply define a public accommodation willy nilly, there isn’t much damage it can’t do to the English language.

    Which, here at PW, I think we knew that.

  33. HTML-fu fail.

  34. I was trying to be funny, and failed again.

    I doubt either is actionable because the Nazis are not a protected group as far as the left is concerned. I also believe a black racist group could likely win a suit against a shop that refused to print “Black Power” or “Kill Whitey” shirts or what have you for said group.

    If we are pretending that the situation is such that the law is applied equally (ha!), then I imagine the graphic designer can refuse to print anything vulgar or inflammatory no matter who it’s for. So, the non-printing of the birthday shirts would be actionable (wrong though I think it is).

  35. It’s not like the s-s couple in this regard didn’t get another photographer they were entirely pleased with. They wanted to make Elane Photography “an example.”

    This. The gay-activist drive to punish anyone who expresses the merest disapproval of them is what has turned me from a “civil unions, get government out of marriage” guy into a “FOAD” guy.

    Look at their actions after Prop 8. Look at the way the Catholic charities were treated in Illinois after the “Civil Unions and Religious Freedom Protection Act” was passed. These are some nasty, vindictive people, and it’s a shame the rest of the homosexual community lets them represent them.

  36. Personally, I have a problem with the phrase “public accommodation” being applied to a person.

  37. The gay-activist drive to punish anyone who expresses the merest disapproval of them is what has turned me from a “civil unions, get government out of marriage” guy into a “FOAD” guy.

    “The love that dare not speak its name” becomes “The love that will rape you unless you consent.”

  38. would argue that a wedding photographer is at the very least a craftsman — and that a craftsman isn’t a public accommodation either.

    I think I was too hung up on Darleen’s characterization of them as artists, but I agree that they would better fall under the category of craftsmen, and thus, not a public accommodation. To sdferr’s point about high versus low art, I’d be more inclined to see the difference between an artist and a wedding photographer as being somewhat akin to a cook at a basic restaurant who executes an established menu, and a chef who conceives one from scratch and executes it.

  39. The obvious counter to this is to go and photograph them poorly. If you are compelled to do something, you can’t be compelled to do it well.

    The problem is, we shouldn’t be in this position to begin with. Nobody should be compelled by a court to have to photograph anyone else.

    As a photographer or an artist you can pick your own clients / subjects. If somebody wishes to commission your services, you get to decide if you’re willing to provide them.

    Under this ruling, it seems to me a photographer can’t even say, “no, I’d rather stay home and watch the playoff game that day. So I’ll be closed.”

    Liberty is being entirely inverted. And we’re allowing it.

  40. Yes. My mind went straight to the 13th amendment.

  41. - Aside from the question of the Left stepping on its own feet in terms of choice, where they obviously want to apply that principle only when its convienient to their aims, if Elane is a licensed business, then the court would have to rule that all such businesses are void and recast them as public services, or using their trem “accomadations”.

    – Now that would be an interesting can of judicial worms.

  42. I’ll preface this with “I haven’t read the opinion yet, but . . .”
    Personal services contracts, as a rule, cannot be enforced by mandating specific performance of the contract. Only damages are available as a remedy. In other words, you hire an actor to perform in a movie, you have a dispute over the movie and the actor walks – you can’t force him to act. But you can sue him for breach of contract.
    Seems the same would apply to wedding photographers. But can you force a photographer to enter into the contract to begin with? Sounds like involuntary servitude.

  43. But can you force a photographer to enter into the contract to begin with? Sounds like involuntary servitude.

    The Democrat party has never forgiven Republicans for outlawing that the first time, and have been working hard to reinstate it ever since.

  44. “Indentured servitude”….its whats for Progressive dinner!

  45. The obvious counter to this is to go and photograph them poorly. If you are compelled to do something, you can’t be compelled to do it well.

    If I were forced at gunpoint- which this is getting pretty close when the state can compel you to do something- to take pictures, I’d take about 500 of my dick. And then I’d sue the clients for breach of contract when they failed to pony up the ten grand for my “public accommodation”.

    Frankly, I don’t care what the courts finally rule on this. If it were me, I would simply ignore whatever the courts said. This is the time for civil disobedience on a massive scale. If people keep giving in every time some black-robed tyrant says “bend over”, I might as well stock up on anal lube now. Unless, of course. I’m required to go without because, I dunno, “racist” or something.

  46. As my son would say, Crawford, “Word.” Servitude to the government seems to be the ultimate goal of progressivism.

  47. Geek, the photog has lady parts, the photography of which doesn’t have the same FU effect as photographing one’s man parts.

    A horse’s hindquarters it is…

  48. What if a pair of gay men own a floral shop and refuse to provide flowers for weddings at churches that don’t honor SSM? Do they get to do that?

    I say they do.

  49. Does this mean that if GayPatriot is at a protest holding up a Tea Party sign, all of the photojournalists in town are legally required to go to the event and photograph him?

  50. What if a pair of gay men own a floral shop and refuse to provide flowers for weddings at churches that don’t honor SSM? Do they get to do that?

    I say they do.

    That’s the best hypothetical by far. It’d be a rather stupid business move in most communities, but I have no doubt that they’d be applauded by the usual suspects and they’d face no legal consequences.

  51. There’s no expectation of artistry, just competence.

    You mean like photo-journalism type “competence?” Because we all know they never have a POV or axe to grind.

    Or how about just-the-facts type competence? As in yes, that dress makes your ass look fat type competence; yes, your relatives really do look like awkward dorks and hillbilly inbreds type competence; and finally yes they really should keep your new brother in law away from pre-teen girls.

    I’m no great shakes with a camera but even I could turn a simple wedding into stills from The Blair Witch Project. Which won’t get me a SoHo gallery showing, but it is an art never the less.

  52. Don’t photo-journalists receive awards and have their stuff put in books? Odd, if what they do is merely a public accommodation.

  53. I say they do.

    Damn right.

  54. Don’t photo-journalists receive awards and have their stuff put in books? Odd, if what they do is merely a public accommodation.

    Heh. I wonder which bus stop bench will win the 2012 Best Bus Stop Bench prize? And where do I order the book?

  55. The bus stop bench on Jefferson Street hasn’t given me a splinter in my ass all year. That’s why I nominated it.

  56. Wedding photographers are photo-journalists? I suppose that if they’re there to capture divorced parents giving each other death stares, or snap the drunk maid of honor getting tag teamed by guys from the wedding band in the bushes, but their raison d’etre is generally to just photograph shiny happy people and provide memories of the day for the couple, no?

  57. their raison d’etre is generally to just photograph shiny happy people and provide memories of the day for the couple, no?

    Yep, when my wife and I married we put disposables on all the reception tables. Add in an open bar and that’s where you get the good stuff…

  58. Say I’m a graphic designer that runs a t-shirt shop. Do I have to print t-shirts with pro-Nazi sayings? If I refuse, can I be sued for political speech discrimination?

    In New Mexico? Sure, why not?

  59. A camera is like a paint brush. Anyone can paint a picture, but only an artist can sell’em.

  60. I mean, only an artist will find a market.

  61. - You know McGehee, when even bus stop benches refuse to splinter your ass, you’re really in an oppressed group.

  62. Well at least I’m not in a splinter group. Anymore.

  63. - Apparently the group you belomg to split off.

    – They call it “Splinttering from the bench”.

  64. You mean like photo-journalism type “competence?” Because we all know they never have a POV or axe to grind.

    Has anyone ever seen a photo of Obama that doesn’t have an indistinct halo around his head?

  65. Nothing indistinct about the gay pride rainbow halo magazine cover…

  66. Wedding photographers are photo-journalists? …their raison d’etre is generally to just photograph shiny happy people…

    Abe,

    Every day on my local news, there’s a segment about a dog park or a cupcake bakery or a high school football player bravely overcoming his injury. Are the people holding the cameras, lights, and microphones in those segments not journalists? Or can you only be a proper journalist if you have squad cars as your standard backdrop?

  67. So, I’m grocery shopping this morning and the grocery store is pretty busy since this is teh beginning of boating season and also the day deadbeats get their EBT cards refreshed and oldsters get their SSI checks. I walk around a corner and through some old ladies and there is a kid wearing a black tee shirt emblazoned with the words “FUCK YOU”. You could tell he thought he was being edgey as all get out, tossing hair out of his eyes and looking like rebel without a clue.

    Am I within my rights as a patron of a public accomodation to expect the store to tell this jackass to turn his shirt inside out or shop elsewhere or do I just ignore it and subtley run my cart over his foot like I did?

  68. do I just ignore it and subtley run my cart over his foot like I did?

    Are you an OUTLAW or do you run to the authorities?

    You run over his foot, doy.

  69. Wedding photographers are photo-journalists?

    No. But the point was, if photo-journalism can consider itself art, then what is essentially the modern equivalent of a portrait painter can certainly lay claim to being an artist.

  70. Thanks, di. I wanted the imprimatur of my fellow Outlaws that I done good.

  71. Actually, they don’t so much photograph people who are shiny and happy nearly so much as they provide the bride with photographs that appear to contain shiny happy people.

    Brother, that’s an art.

  72. Abe, I’d rather use the analogy of wedding photographer is to photo-journalist as blogger is to journalist. Same thing, different degrees. Some wedding photogs knock your socks off, some bloggers run rings around journalists. But wedding photogs don’t get paid for taking snapshots. And bloggers should have the same 1st Am protections as journalists.
    Make sense, or is time for me to go home?

  73. OT, whoa, way cool Venus on the move. Stills and a vid.

  74. And a big bite out of the edge at 6:32pm eastern. This pic will advance with time.

  75. Wedding photographers are photo-journalists?

    Some are. Maybe you should look at the industry a bit. Very little strictly “traditional” wedding poses are done. Yes, a few portraits so Aunt Doris can put a picture of the family in her dining room, but most couples today love the photo-journalist approach to a wedding.

    In my other life, hubby & I have been taking pics (him mostly, I do photo finishing and special effects. I posted my ‘water dress’ one here, but my years of posts haven’t been restored yet. We are currently doing model shoots and product shoots — mostly for trade right now) and gearing up to start doing weddings.

    It is far from point-n-shoot with an iPhone.

  76. I just ignore it and subtley run my cart over his foot like I did?

    Good show, girlfriend!

    almost 4 years ago my dad had quad-bypass surgery. On the day of surgery, early morning, I’m sitting in the waitroom with mom. We are the only ones there and have the TV tuned to morning news just so there’s something besides silence in the room.

    In tromps a 30 something couple with a couple of kids. One about 12 or 13, boy who just walks over to the tv and starts flipping the channels.

    Mom turns to me, her voice raised and says “Don’t you find it annoying that some people don’t have the common courtesy to ask if someone else was watching the television?”

    The boy throws us a sheepish look and quickly turns back to the channel we were watching.

    She’s a feisty 80 years old and when she gets that tone in her voice, people obey.

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