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29 J.L. & Pol. 499 (2013-2014)
What Is Wrong with Compelled Speech

handle is hein.journals/jlp29 and id is 517 raw text is: What is Wrong with Compelled Speech? Steven H. Shiffrin* In late August 2013, the New Mexico Supreme Court filed its opinion in Elane Photography, LLC v. Willock, a case which raises fundamental issues in the law of compelled speech, including corporate rights, media boundaries, autonomy and conscience, and the role that the nature of speech, the character of the discourse, the perception of endorsement, and the nature of the participation should play in resolving compelled speech issues. In this essay, I want to reflect on these and other issues presented by the case. Elane Photography, a commercial business, refused to photograph a same-sex commitment ceremony between two lesbians because it was opposed to same-sex commitment ceremonies and same-sex marriage. The company is co-owned by Elaine2 Huguenin, the photographer, and Jonathan Huguenin, the business manager. Vanessa Willock contacted Elane Photography to secure its services for a same-sex commitment ceremony. Willock hoped to have photographs as a memory of the day for family and friends, not for use in the newspaper or other distribution to the public.3 By standard contract the company would own the copyright. According to Jonathan Huguenin, his opposition to the ceremony was based on his understanding of the Bible4 and his view that a family with a man and a woman at its core is the best way to order society for family and for child rearing.5 Accordingly, he expressed a desire not to be associated with the message he thought was conveyed by the ceremony, namely that marriage need not be between a man and a woman.' Mr. Huguenin's objections were on religious and public policy grounds. He did not deny * Charles Frank Reavis, Sr., Professor of Law Emeritus, Cornell Law School. On behalf of Michael Dorf and myself, I filed an amicus brief in the New Mexico Supreme Court in support of Willock. Mike and I took no position on the freedom of religion issue. I am grateful to Sheri Johnson and Seana Shiffrin for comments on this manuscript and to Mike, Seana, Sheri, Nelson Tebbe, Shannon Minter, and Tobias Barrington Wolff for comments relating to the amicus brief. Especially in this case, it is useful to note that parts of this article are opposed by many, if not all, of the above. 2013-NMSC-040, 309 P.3d 53, cert. denied, No. 13-585, 2014 WL 1343625 (Apr. 7, 2014). 2 The record does not disclose why the company is named Elane Photography instead of Elaine Photography. Perhaps the difference is to accent that Elaine Huguenin is not the sole owner of the company. ' Transcript of Hearing at 39, Willock v. Elane Photography, Inc., HRD No. 06-12-20-0685 (N.M. Human Rights Comm'n Jan. 28, 2008). 4 Id. at 89, 92. 1 Id. at 92. 6 Id. at 87, 91. 499

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