Freedom to force the artist’s hand

***Adam Balinski is a guest contributor and a friend of Brian’s from BYU Law School. This article was first posted on his blog, Please visit his blog for more respectful, insightful commentary.***

Some people have jumped on what I think is an incoherent bandwagon that creates crazy consumer rights.

An uncontroversial wedding cake that the baker could’ve declined to decorate for dislike of flowers or the color pink. photo by tracyhunter

Under federal law, public accommodations are places where consumers go to receive a service. Consumers can’t be kept out of or denied services at public accommodations because of their sex or other protected attributes. (It’s true that under many anti-discrimination laws, sexual orientation is not a protected attribute. But it should be. It’s fair to allow people to go and buy regardless of how they self-identify.)

But regardless of who they are, consumers have no right to demand specific services. Sure, if a service is offered, it should be offered to all with only limited exceptions (like those based on age or individual behavior). But consumers generally can’t force a business to offer any particular service. You can’t sue a store for not selling alcohol, cigarettes, or the “morning after” pill.

That basic principle seems straightforward enough and many of its applications are uncontroversial. For example, a movie theater is a public accommodation. Movie theaters can’t kick people out because they are Mormon, but they can legitimately choose to not show Meet the Mormons. Likewise, museums can’t deny entrance to women, but they can refuse to showcase feminist propaganda.

But when it comes to cake-decorating or photo-taking controversy suddenly abounds.

A bakery is a public accommodation. Of course, a baker who makes cakes should make cakes for anyone who wants to buy one (and I think regardless of what people plan on doing with their cakes). But bakers may refuse to decorate cakes in a certain way. Maybe they are morally opposed to conveying certain messages in their art or maybe they simply think the consumer’s design would turn out ugly.

If a baker doesn’t want to write “Gays are going to hell” or whatever on a cake, she shouldn’t have to. If a baker doesn’t want to put gay figurines atop a cake, she shouldn’t have to. It goes without saying that the cake-buyer can go home and say whatever he wants to say with his cake: He just can’t force somebody else to say it for him.

A photo studio is a public accommodation. A studio may not deny entrance to protected classes of people (and yes, as stated, those classes should include LGBT communities). But studios may refuse to create certain types of pictures for various reasons. For example, a photographer may refuse to create pornography. While some forms of pornography (like child porn) are illegal, many forms of pornography are legal. But just because something is legal doesn’t mean a photographer must capture it. A photographer, as an artist, is defined in part by the art she creates and the messages she sends through that art. The freedom of speech protects photographers from creating work which sends a message they disagree with or they simply feel is not in good taste.

If a photographer doesn’t want to capture a particular type of wedding, she shouldn’t have to. Maybe the wedding is on a Sunday, maybe alcohol is being served, maybe it is because the location and lighting will be terrible, or maybe it is because it is a gay wedding. Yes, I said it. What difference should it make whether the photographer’s personal reasons seem petty, unpopular, or nonsensical in the consumer’s eyes?

Why do some people favor forging a law that would force the artist’s hand? First, don’t you think the odds of getting the quality of art you want drops dramatically when you’ve dragged the artist against his will? Second, what about the artist’s rights? Artists should not face lawsuits, not to mention imprisonment, for choosing not to convey certain messages in their creations. Please, let’s keep our country the kind of place where no artist is chained to his easel.

2 thoughts on “Freedom to force the artist’s hand

  1. Thanks for contributing, Adam. You really emphasize the idea of the “artist.” Does the ability to refuse to provide a specific type of service within your ability to provide depend at all on the expressive element? Or are you just saying, “Nobody gets to demand a given service for themselves if it is not offered to the public generally and is against the will of the service-provider, whether or not the rendering of the service involves expression.” Would it make a difference if the artist (say, a baker of wedding cakes) advertised that he/she would make to-order custom cakes–“Anything you want I will make.”?

  2. You’re welcome. I think you are asking a few different questions. I will try to address each. First, I think the level of leeway businesses should be granted in refusing different services should depend on the level of expression inherent to the specific service. I don’t think its a binary inquiry, but more of a flowing spectrum between more expressive to less expressive acts. Art (photography, painting, decorating, sculpting, writing, etc.) is far on the expressive side of things and should be given substantial protection. Second, I think the fact that someone advertises they will “make anything you want” could be a consideration, but not really a linch-pin. Likely implied in that kind of advertising is a limitation based on reasonableness. The artist may not have considered that someone could ask him or her to do X, Y, or Z. I guess what I am getting at is “anything goes” usually doesn’t really mean “anything goes.” But even if it did, why not allow people some flexibility to change their minds later?

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