“Choosing What to Photograph Is a Form of Speech”

by Walter Olson on March 18, 2014

New WSJ op-ed by Eugene Volokh and my colleague Ilya Shapiro, with which I agree 100%: “We support the extension of marriage to same-sex couples. Yet too many who agree with us on that issue think little of subverting the liberties of those who oppose gay marriage. Increasingly, legislative and judicial actions sacrifice individual rights at the altar of antidiscrimination law.” Existing precedent affords a handy if narrow way to reverse New Mexico’s wrong-headed Elane Photography decision: “The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject.”

Related on bake-my-cake laws: in the absence of more robust rights to freedom of association, could we at least narrow what’s a public accommodation? [Scott Shackford, Reason; David Link, Independent Gay Forum (on precedent of landlord reluctance to rent to cohabitors] Earlier on photography and cake cases here, here, here, here, here, here, here, here, etc.

P.S. Cato podcast with Caleb Brown interviewing Ilya Shapiro on the topic.

{ 33 comments }

1 Malcolm Smith 03.18.14 at 12:39 am

How about a really radical response? You could let people decide for themselves whom they want to deal with in business matters, whom they wish to associate with, and whom they wish to hire.

2 L. C. Burgundy 03.18.14 at 9:57 am

Speaking from personal experience, photographers and bakers are the prima donnas of the wedding industry. They sell some pretty basic commodities that are not at all essential to the actual marriage at inflated prices and thus are firmly convinced they have the most important product in the world. I’m not at all surprised that these cases are coalescing around them. I believe this is the case where the photographer proudly responded to a general e-mail not at all fishing for this kind of response that they could not help the inquiring lesbian couple because they only photographed “traditional” couples. Stupid. Why not just paint a huge target on yourself?

I, for one, could accept a ruling that photographers are not very important on grounds of public accommodation – but I would not extend that to a lot of other businesses, frankly. Hotels? No. Groceries? No. Landlords? No. Bakers are on shakier ground. They basically sell food, and I have a real issue not imagining that generally as a public accommodation.

3 No Name Guy 03.18.14 at 1:31 pm

LC
I think the argument WRT bakers is the decoration aspect. If they just sold a cake, with frosting evenly applied and no decoration (as a machine could do – see any mass produced snack cake) there is no creativity involved in that whatsoever. The skills are of the same nature as a guy at the tire shop slapping new rubber on the rims.

Ask them to decorate it – that’s where the artistry comes in. Painting, as it were, in edible material.

4 Anonymous Attorney 03.18.14 at 1:35 pm

“Free speech” is far too narrow a ground upon which to base someone’s right against being forced to photograph something they’d rather not. Freedom of association is more like it.

5 Allan 03.18.14 at 6:16 pm

Lines have to be drawn.

If photography is free speech, and if refusing to photograph a person because of their race or sex is practice of free speech, then I think that this is the type of speech that may be regulated.

If you want to do portraits, then you cannot refuse to do a portrait of a black person because the person is black and you cannot refuse to do a portrait of two people because they are the same sex and are holding themselves out as married. If you bake wedding cakes, the same goes for you.

I do not like to make comparisons between today’s events and horrible things from the past… But, why would a photographer or a baker be any different from a chef in a restaurant? 50 years ago, those chefs (or line cooks) in Atlanta and Charlotte were making the same arguments. is de jure discrimination any worse than de facto discrimination?

This debate is about the lines one draws between the rights of individuals versus the rights of society. On the margins, there are close calls. In the mainstream, however, they are not.

6 gasman 03.18.14 at 7:06 pm

Allan does sum up the broad generalities. Folks should not have to fight for access to commodities. And if anyone confuses a wedding cake with commodity food, then you need to spend some time watching TLC where cakes rate at least 3 tantrums, and at least one couple fight.

There must be some balancing of accommodation. If a neo-nazi skinhead had a mean streak, then wouldn’t it be fun to call all of the jewish bakers and photographers in town to accommodate their needs? With that scenario, who’s rights supersede. Surely there must be some level of accommodation that can justly be declined.

Even the guy at the lunch counter offering a commodity staple of food has recognized limits for accommodation. If a hot dog vendor is approached and asked for kosher service, or gluten free, or even to hold the mustard, is he required to accommodate any of these requests?

7 KB 03.18.14 at 8:26 pm

I still want to know WHY you would want to force someone to do this when their heart isn’t in it. What kind of cake or pictures do you think you’ll get?

8 Smallgovernmentguy 03.18.14 at 8:35 pm

I don’t know what is more depressing about this thread- that some believe people have rights to the labor and property of others, that this “right” can be tiered according to a arbitrary basis of “need”, or that without government aggression, citizens of the US would be homeless and starving.

9 David Schwartz 03.18.14 at 9:41 pm

KB: I wonder the same thing. Why would a black person ever want to eat at a Denny’s or any lunch counter for that matter? You just know the chef’s heart isn’t going to be in it.

10 Allan 03.18.14 at 9:50 pm

Neither. The most depressing thing is that some believe that no government would result in a better outcome than the government we have. Social Darwinism is an amoral and cruel system.

By the way, who believes that people have rights to the labor and property of others? Not me. I believe that those who benefit from something should pay for it, if they can.

It is a point of fact that, without governmental support systems, people would be homeless and starving. That is what happened during the depression. And that is why we have a social safety net.

11 Allan 03.18.14 at 10:05 pm

Gasman.

That battle was fought in the 1960s. The rule is that, if you serve one, you may not refuse to serve another because of race. That has been extended to sexual preference. Perhaps you do not like the extension, but that is a matter of taste. The underlying premise is that the state can determine when discrimination is wrong and can prohibit it. If I read you right, you would go back to the 1950s when anyone who wanted could discriminate.

That was bad. African-Americans could not eat at restaurants, ride in the front of the bus, stay at hotels, drink from white only fountains, use white only bathrooms, or go to white only schools.

If I don’t read you right, please tell me how we can allow bakers and photographers to refuse their services based on race, while at the same time ensure that all of our citizens have the right to do things like eat at restaurants.

12 Canvasback 03.18.14 at 11:37 pm

Hell, Allan. Why not make it mandatory that the photog covers the deflowering of the bride? (If the customer demands it of course) Otherwise, off to jail. Even better: make them film a vanity porn session. There could even be a motto for the policeman at the back of the room: “You shoot, or we shoot.” That really is your argument.

13 Malcolm Smith 03.19.14 at 1:35 am

Allan’s response is a good example of how the reaction against Jim Crow has poisoned the whole of the law. There are two things about Jim Crow you ought to remember. The first was that it didn’t just permit racial discrimination; it mandated it. People who didn’t want to discriminate were forced to do so. And when the segregation laws came in, businesses fought hard against them – not because they all liked negroes, but because they knew it would raise their overhead if they were forced to provided separate facilities for a minority race. The Jim Crow laws set in concrete a malignant social system which would have gradually been worn away by time and economic reality.
The second point is that all this was 50 years ago. If you think cancelling the laws against racial discrimination is going to usher in a new era of Jim Crow, then you have lost a toehold on reality.
However, since then the response of the politically correct is to add various classes to the protected categories in a haphazard manner, without serious consideration as to the extent of the problem they are trying to solve. Some of them are stupid, such as the objection to discrimination against race. In the rest of the country, it depends on the state you are in. Some include sexual orientation, some don’t. Some include religion. Some include such things as veteran status and Appalachian origin. The states where these protected categories do not exist seem to get on quite well without them.
In my opinion, all anti-discrimination laws applicable to individuals or businesses should be rescinded. if that is too much a bite for some people’s mouths, then keep race, but rescind everything else. Let people be free to deal with others as they see fit. If that means a shop doesn’t want to sell to a black person (or a white person!), then I would recommend two options:
(1) Take your business elsewhere.
(2) Picket them, hand out leaflets condemning them, tell the press. In other words, name them and shame them. That’s how we used to deal with antisocial behaviour before the advent of this quaint legal theory that everything not forbidden must be compulsory.

14 Allan 03.19.14 at 7:43 am

Malcolm,

While it is true that laws mandated segregation, even in areas they did not, there was segregation by businesses. The civil rights cases in the 1960s were not about Jim Crow laws, but about private businesses wishing to segregate.

You do have a good point, if you don’t like a business’s practice, do not patronize the business. But what do you do if every business engages in these practices, businesses that do not are terrorized, and local law enforcement will do nothing to stop the terrorism?

Not everyone out there is as rational as you. If we are to live in a civilized society, we must agree to live by the rules set by civilization.

15 Allan 03.19.14 at 7:55 am

Gasback,

If a photographer photographed deflowering a bride, it would be wrong for him/her to refuse to do so if the bride were a man. The question is not whether the photographer provides a service, but whether the photographer denies the service to someone because of a prohibited reason.

I guess the bottom-line problem is this: If (assuming discrimination on the basis of sexual orientation is against public policy), the law permits a photographer who holds him/herself out as a wedding photographer refuses to take pictures at a same sex wedding simply because it is a same sex wedding, under what constitutional theory theory can we preclude the same photographer from refusing to take pictures a wedding, simply because the bride and groom are African-American (assuming racial discrimination is against public policy).

I do not think such a theory exists. Our society, for better or worse, has decided that it will not allow for certain types of conduct. Once that decision is made, lines must be drawn. Suggestions that the underlying principles of our society be redrawn is simply radical. At least professor Shapiro recognizes that there must be lines. he simply would choose to draw them at a different place.

16 Micheal 03.19.14 at 9:12 am

A possible solution may be to allow those who wish to discriminate the option to do so, but require that thier policy be posted in their businesses where customers can be informed beforehand.
And your policy must be all inclusive.

You can refuse to do photography for a sex marriage but you can not do portraits for gay customers.
You can refuse to do a wedding cake for a same sex couple but you can not sell donuts to gay customers.

In for a penny, In for pound

In most cases the consumer market would take care of most of the businesses with a smaller market share and higher commodity cost as larger producer won’t want their products associated those businesses.

People have the right to make bad business decisions and the market has a right to hold them accountable for those decisions.

17 DEM 03.19.14 at 10:59 am

It is a point of fact that, without governmental support systems, people would be homeless and starving.
_______________________

I believe you have “point of fact” confused with “bias-tainted hypotheticals.” And if we are going to indulge our biases in that way, I would suggest that it is a “point of fact” that without the over-generous, perverse, inefficient, and fraud-ridden support systems we actually have (as opposed to what you appear to be imagining), people would be less dependent, work more, more often born to intact, functional families, and, but for rare cases that would be most often addressed through private charity, self-sufficient.

18 Allan 03.19.14 at 11:36 am

Micheal,

So what would you do about the case where no restaurants will serve African-Americans, and there are two African-Americans in the community? Those discriminated would have no recourse. They could not avail themselves of the restaurant and they have no market power to get a new restaurant to open.

the market is not a panacea either.

Dem,

you and I have a fundamentally different view on economic theory. I do not believe that lessening the social safety net will have a net aggregate affect. I base my belief on the conditions in the US for the poorest of the poor prior to 1930 as compared to today. I am unsure where you get empirical evidence to support your theory. Some people simply do not have the wherewithal to survive at what one might consider basic minimums without support. I do not believe that there are few enough “rare cases” that they can be supported by private chareity.

Would you go back to allowing restrictive convenants preventing selling your house to an African-American or a Jewish person? Would you advocate segregated lunch counters? De facto discrimination is just as insidius as de jure discrimination. If you are discriminated against, you are discriminated against. We, as a society, don’t allow theft. We don’t allow assault. We don’t allow murder. We don’t allow libel. If we choose, why can’t we also forbid discrimination?

19 Kirk Taylor 03.19.14 at 1:20 pm

This is how rational people respond to discrimination – more speech:

http://www.ijreview.com/2014/03/122508-bar-gets-heat-banning-guns-called-gun-carriers-far-worse/

20 Allan 03.19.14 at 1:22 pm

I forgot a word.

I do not believe that lessening the social safety net will have a net negative aggregate affect.

21 Allan 03.19.14 at 1:22 pm

Too many negatives. Let’s restate.

I believe that lessening the social safety net will have a negative net aggregate affect.

22 Jack Wilson 03.19.14 at 2:55 pm

Here’s a question for the ‘wedding cakes are a constitutional right’ crowd: can the cake maker charge more for a cake that he doesn’t want to bake than for one that he is enthusiastic about?

23 DEM 03.19.14 at 4:00 pm

Conditions for the rich were a lot worse in the 1930s than they are today, too. To suggest that living standards for the poor have improved solely or even predominately due to government handouts is not only lacking in empirical support, but ignores substantial evidence that those handouts have, in fact, made things much worse.

As for anti-discrimination policies, I reject entirely the notion that forcing a photog with bona fide religious objections to photograph a gay wedding is even remotely like denying service at a lunch counter to blacks. This is not a Rosa Parks redux, and so long as liberals keep pretending it is, it’s hard to have a rational debate about it.

Your comparison to laws against assault and murder are rather bizarre and wholly unconvincing.

24 Allan 03.19.14 at 6:06 pm

Jack,

Excellent question. I don’t know. But if the lower price was because the patron was white or heterosexual, I think there might be a problem. Proving the motive, however, is another thing altogether.

Dem,

Why is my comparison to crimes bizarre and wholly unconvincing? Laws against discrimination and against crimes all represent our moral framework as a society.

Please cite to empirical evidence that the social safety net has had a net negative aggragate affect on the country.

The poor were starving in the 1930s. Not so much now, as they have food stamps and other safety net programs. The rich were never starving.

I do not think this is a Rosa Parks redux. I just was wondering the methodology we can use to make rules that prohibit discrimination based on race in restaurants but allow discrimination based on homosexuality for wedding products such as cakes and photographs. For my question, we will assume that the government wants to prohibit both types of discrimination. (May I also assume that we agree that discrimination on the basis of sexual orientation and race is economically irrational?)

25 Bumper 03.19.14 at 10:13 pm

Allan,

We, as a society, don’t allow theft. Get stopped by the police driving down the road with more cash than they think you should possess.

We don’t allow assault. Jaywalk in Austin, TX and see what happens.

We don’t allow murder. I’m sure that dead grandma in Atlanta from a botched drug raid, or the kid gunned down last week while answering the door while holding a WII controller might just disagree.

We don’t allow libel. Surely someone as liberal as you must watch MSNBC or read the Old Gray Lady. Oh, if a liberal says it it must be true, but a scum sucking conservative says it the judicial guillotine.

If we choose, why can’t we also forbid discrimination? Based on your previous assertions I’m amazed we gotten as far as fast as we have.

Note: I am not picking of peace officers, I have a number of dear friends who are policemen, we often pontificate over adult beverages where this train got off the track. Often it comes back to government mandates that resulted in bad hires, poor training, low pay and over militarization. Go figure. I almost forgot to mention liberal “Let ‘em Go” judges.

26 Malcolm Smith 03.20.14 at 12:55 am

To reply to Allan: what happens if every business in town discriminates and are not intimidated by social pressure? What happens if no restaurant will serve Afro-Americans and there are only two Afro-Americans in town?
If I ever found myself in that situation, I would consider it time to pack my bags. Whether it was my fault or not, I would obviously be unpopular in that town, and the residents would find plenty of other legal ways to shun me and make my stay unpleasant. It would also mean that the anti-discrimination laws you recommend had been made against popular opinion. That is the catch-22 of such legislation: it is either unnecessary or undemocratic.
But, in any case, you are tilting at windmills. In the real world how likely such a thing would be in this day and age?

27 Jack Wilson 03.20.14 at 7:42 am

Didn’t this whole notion of outlawing discrimination by businesses start as a response to the bizarre creation known as Jim Crow laws? These were laws that required businesses to discriminate. The existence of these laws indicates that businesses weren’t discriminating enough. In other words businesses will tend to behave rationally rather than in a discriminating manner. I say we let them return to rational behavior and stop interfering in the business/consumer relationship.

28 Ron Miller 03.20.14 at 11:00 am

This whole let’s make race discrimination legal again will not gain any currency anywhere except in these comments. I’m grateful for this.

“Here’s a question for the ‘wedding cakes are a constitutional right’ crowd….”

I strongly believe that people should not discriminated based on sexual orientation and we should have laws to reflect this decency. But I appreciate that reasonable people disagree with me. But can at least have an honest discussion about it instead of making up straw men who argue that there is a cake is a constitutional right? Because it is a dishonest way to attack the argument.

29 gitarcarver 03.20.14 at 11:27 am

Allan,

Please cite to empirical evidence that the social safety net has had a net negative aggragate affect on the country.

The fact that we now have more people being supported by the government’s reach into people’s pockets than not? Do you think that is a good idea? The so called “war on poverty” has resulted in no major changes and in fact a case can be made for the idea that the situation is worse because people use the “safety net” not as a net to catch them from falling, but as a foundation.

Others,

But as to the original questions on so called “discrimination,” there is a difference in the artistic work of a wedding cake maker or photographer and a burger at a lunch counter.

The burger is the same no matter who buys it. Yet the baker and the photographer are chosen for their artistic works. It is not how the cake tastes, but how beautiful it looks. Anyone can take a picture with a cell phone, but a true artist can capture the beauty of a wedding.

If art is a form of speech, then the courts have no business or right to compel speech that is against their wishes.

Finally, we talk all the time about not discriminating against the beliefs of a person when they are a customer. We outlaw hiring or not hiring on the basis of beliefs. We make companies at the point of the government sword “accommodate” the religious beliefs of employees once hired.

Yet there is no accommodation or place for the beliefs of the owner of a business? The government says that owner must accommodate everyone but yet his rights and beliefs can be trampled upon?

If we are talking about equality, where is the equality in that?

30 DEM 03.20.14 at 12:57 pm

“Please cite to empirical evidence that the social safety net has had a net negative aggragate affect on the country.”

If you were really interested in such research, you’d use Google to find it, just like I would. But I can’t take your message board demand for academic research seriously when your posts in this very thread are absolutely full of sweeping assertions backed by nothing other than your own beliefs. That was the point of my first response to you, a point I fear you’ve missed. Why am I to be held to a standard to which you apparently don’t hold yourself?

“Why is my comparison to crimes bizarre and wholly unconvincing? Laws against discrimination and against crimes all represent our moral framework as a society.”

Because the distinctions betwen murder and refusing to photograph a wedding on religious grounds are so vast as to render your comparison meaningless at best, intentionally misleading at worst. When we outlaw murder, we don’t confront a conflict between bona fide, legally protected religious beliefs and civil rights granted by law. When we force a religious photographer to photograph a gay wedding, we do.

31 Jack Wilson 03.20.14 at 4:17 pm

Ron Miller: You claim to ‘ strongly believe that people should not discriminated based on sexual orientation and we should have laws to reflect this decency.’

Would you require people who subscribe to dating services to not discriminate based on sexual orientation?

32 Ron Miller 03.21.14 at 9:20 am

Jack, I support taxation but I am not a socialist. I support people but I don’t believe we should have a Gestapo. support clean air yet I still think we should travel by automobile.

This was said obviously in the context of businesses that are open to the general public.

Actually, Jack, my first thought was to take you out on a ledge to show that under your theory, you could discriminate by race. Then I looked back at these comments. You are already on that ledge.

This does not automatically make you wrong but I think it is important to ask: is there a single public figure in America who shares this view? Take me to the reddest state in America. Is their a single congressman who supports this? I don’t know. But I doubt it.

33 Jack Wilson 03.21.14 at 10:34 am

I have no problem with discriminating by race, gender, religion, height, general appearance, political affiliation, national origin, body mass or amount of hair.

Prior to the Great Society, most of that type of discrimination was legal, but was generally not an issue. In fact discrimination was only a major problem where it was required by law.

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