Elane Photography v. Willock and a First Amendment right not to create speech

March 18, 2014

Cato’s Ilya Shapiro and I have an op-ed in today’s Wall Street Journal on this subject, based on Cato’s, Dale Carpenter’s, and my amicus brief in the case. An excerpt:

Take, for instance, a freelance writer who declines to write a press release for a religious organization with which he disagrees. By the reasoning of the New Mexico Supreme Court, the writer has violated the law because his refusal to write the press release is discrimination based on religion — much as Elaine Huguenin’s refusal to photograph an event with which she disagreed [a same-sex commitment ceremony] was treated as violating the law. Yet a writer must have the First Amendment right to choose which speech he creates, notwithstanding any state law to the contrary.

The same is true of photographers who create a visual expression. The U.S. Supreme Court has said repeatedly that the First Amendment protects an “individual freedom of mind” — e.g., West Virginia State Board of Education v. Barnette (1943), which affirmed the right not to salute the flag or say the Pledge of Allegiance — which the government violates whenever it tells a person that she must or must not speak. Forcing a photographer to create a unique piece of art violates that freedom of the mind.

A petition for certiorari in Elane Photography is pending before the Court; we should hear soon whether the Justices will agree to hear the case.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · March 18, 2014