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Update by Jay: Volokh says…no reason to fault the ACLU yet…the lawyer isn’t sanctioned by the ACLU. I trust my contributor here as a solid source and will hold off on any corrections until I talk to them and have time for further research. Do notice that he called them an ACLU-affiliated lawyer though. I’ll find out more tomorrow and update whether a correction is warranted or not. If so, I will make sure to do it promptly.Volokh: Photographers Denied the Freedom To Choose What They Photograph
Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane’s work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock’s same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney’s fees and costs.
Photography is an art, and Huguenin is an artist. It may not be high art, but it embodies a wide range of artistic choices (especially since she says she takes a “photojournalist” approach, rather than just doing normal staged photos). And though she sells the art to its subjects, that is of course part of a long and continuing tradition in the arts, including painting and sculpture, as well as photography. Certainly many of the works protected by the First Amendment (books, newspapers, movies, and the like) were created for money and distributed for money.
Yet the New Mexico government is now telling Huguenin that she must create art works that she does not choose to create. There’s no First Amendment case squarely on point, but this does seem pretty close to the cases in which the Court held that the government may not compel people to express views that they do not endorse (the flag salute case, West Va. Bd. of Ed. v. Barnette, and the license plate slogan case, Wooley v. Maynard).
For whatever it’s worth, Huguenin also says she exercises political judgment in deciding what to photograph (for instance, she reports that she refuses to make photographs that put horror films in a positive light, or to take photographs that positively portray abortion, pornography, or nudity, as well as same-sex marriage). I don’t think that sort of political selectivity should be required for photographers to be protected as artists, but it seems to me to highlight the scope of the artist’s judgment, and the artist’s constitutional right to exercise such judgment (just as a bookstore has the right to choose which books to stock).
Consider a few analogies:
Imagine a black photographer being forced by the “human rights” commission to photograph a KKK rally.
Imagine pro-abortion sign-maker being forced to print pro-life signs.
Imagine Stop the ACLU being forced to run Code Pink ads.
…and on and on…
This is an outrageous affront to the First Amendment, which protects not just the right to privately hold certain beliefs, but to live them out publicly. This sort of coercion and punishment is fit, not for the United States, but for the worst totalitarian regimes.
Thankfully, the photographer is being defended by ADF, who will surely take this ridiculous ruling from an extra-judicial tribunal to court...
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As in the days of Noah....
