Eugene Volokh on Elane PhotographyEugene Volokh has discussed the ruling in Elane Photography LLC v. Willock in four recent posts. Compelling Speech by Commercial Photographers, Freelance Writers, Musicians, and So On: “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.” Religious Accommodation Statutes and a Right Not To Participate in Same-Sex Weddings: “I take it, for instance, that if a law requires certain businesses to be open Saturdays, and a Jewish objector seeks an exemption (assuming there’s a religious exemption statute in the jurisdiction), it shouldn’t matter whether his small store is a sole proprietorship, a partnership, or a limited liability company. Plus, for whatever it’s worth, the federal RFRA has been applied to protect the rights of churches, which are corporations; if such corporates are ‘person[s],’ why wouldn’t small husband-and-wife limited liability companies be as well?” The First Amendment and the Race Discrimination Bogeyman: “The desire to prevent race or disability discrimination should no more dissolve your right to be free from being compelled to speak (here, to create an artistic work) than it should dissolve the right to express bigoted views, to choose members of a racist political organization, or to select ministers (or church members) based on any criteria a church pleases. And if that means that writers and photographers can’t be legally barred from choosing their subjects based on race, that’s just an implication of the basic First Amendment principle of the speaker’s right to choose what to say.” Discrimination Against Nazis in Public Accommodations: “So bans on political affiliation discrimination in public accommodations aren’t common — but they certainly exist, and it’s impossible to dismiss hypotheticals based on them as ‘absurd.’ And if the First Amendment is read as not protecting Elane Photography, it probably wouldn’t protect the speechwriter or press release writer who refuses to write for Nazis or Nazi events, either.” Religious Accommodations and the Elane Photography Case
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