Legal Commentary

The First Amendment and the Race Discrimination Bogeyman

By Eugene Volokh

In the most recent discussion of Elane Photography v. Willock, a commenter asked: ?Imagine if instead of a gay couple it was an interracial couple. Would you still support Huguenin?s refusal to photograph the wedding? Or what if the couple were parapalegics and she had an ?aesthetic aversion? to photographing the disabled?? The question (at least as to race discrimination) comes up routinely in such cases.

The answer is ?of course.? It seems to me that freelancers who create expression ? whether speeches, press releases, Web sites, photographs, paintings, musical compositions, or what have you ? should be entitled to choose what they create, regardless of whether we find the basis for their decisions praiseworthy or contemptible. If a musician who is a member of the Nation of Islam member decides that he wants to only perform at black weddings, or non-Jewish weddings, or non-interracial weddings, he should be entirely free to do so. Likewise if an Orthodox Jewish composer decided he didn?t want to compose music commissioned for a wedding between a Jew and a non-Jew. (This may well constitute ethnicity discrimination, which the law generally treats much like race discrimination, if the composer is focusing not on the non-Jewish partner?s religious beliefs but on the non-Jewish partner?s being of non-Jewish descent.)

And of course the same would be true if a portrait painter concluded that he didn?t want to make art depicting certain kinds of disabilities (whether because he thought he wouldn?t be very good at that, or because it isn?t likely to be as aesthetically pleasing as he wants his art to be, or what have you). And it would be true for the other examples I gave, in which people chose what to write, photograph, or compose for based on the parties? religion, political affiliation, source of income, marital status (imagine a Catholic who doesn?t want to write a press release for a celebrity wedding in which one party is divorced) or who knows what else.

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.

Full post as published by The Volokh Conspiracy on December 16, 2009 (boomark / email).