We talked about the Elane Photography case here last Thursday in a post titled "Linda Greenhouse concedes that there is 'an instinctive appeal' to the 'notion' that 'photography is an expressive medium.'"
Am I sorry the Court didn't snap up that case? The photographer lost out to the nondiscrimination principle. Perhaps this is an issue that needs more percolation in the lower courts or that the Court needs to put off until after its (inevitable) decision declaring a constitutional right to marry a person of one's own sex.
ADDED: WaPo's David Savage declares the cert. denial "a victory for gay rights."
The appeal argued that a state anti-bias law, when applied broadly, would “require individuals who create expression for a living -- like marketers, advertisers, publicists and website designers -- to speak in conflict with their consciences.”
UCLA law professor Eugene Volokh and the Cato Institute’s Ilya Shapiro had filed a separate brief urging the court to hear the case. They said the 1st Amendment should protect writers, singers, actors or artists whose work involves expression. But they said this protection was limited in scope and should not extend to “denials of service by caterers, hotels, limousine service operators and the like.”AND: Volokh and Shapiro's brief [PDF] stresses the right to refuse to speak (including the right to refuse to take a photograph). Excerpt:
Democracy and liberty rely on citizens’ ability to preserve their integrity as speakers, thinkers, and creators—their sense that their expression, and the expression that they “foster” and for which they act as “courier[s],” is consistent with what they actually believe.
This is why, in the dark days of Soviet repression, Alexander Solzhenitsyn admonished his fellow Russians to “live not by lies”: to refuse to endorse speech that they believe to be false. Alexander Solzhenitsyn, “Live Not by Lies”, Wash. Post, Feb. 18, 1974, at A26. Each person, he argued, must resolve to never “write, sign or print in any way a single phrase which in his opinion distorts the truth,” to never “take into hand nor raise into the air a poster or slogan which he does not completely accept,” to never “depict, foster or broadcast a single idea which he can see is false or a distortion of the truth, whether it be in painting, sculpture, photography, technical science or music.”