Thursday, April 10, 2008

Where Does Expression Begin and Commerce End?

This case in New Mexico helps to illustrate the deep-seated problems with the commercial speech exception to the First Amendment. Where does artistic expression end and commercial speech begin? By whose standards?

The case involves a photographer who refused to photograph a same-sex commitment ceremony. The New Mexico Human Rights Commission yesterday found that such a refusal violated the New Mexico public accommodations act, which covers sexual preference discrimination.

Even though this woman is clearly a bigot, if she can be forced to photograph something of which she does not approve, then virtually any speech or expression can be regulated if it is done "for hire." As Professor Volokh points out, photography is art, and is inherently expressive. Other forms of art that are frequently made for hire: every piece of music you've ever paid money to hear (so gangsta rap can be outlawed, amongst plenty of other things), every movie you've ever paid money to see, most works of art you've ever seen in a gallery, and every news broadcast on television. Just to name a few.

This is where the intersection between economic freedom and political freedom becomes clearest. Perhaps more than anything else, this case illustrates just how dangerous the restriction of economic freedom really is.

More at memeorandum.

Bonus side question: What is it about government agencies called "Human Rights Commissions" that makes them so frequently the source of real violations of human rights? For some reason, I keep thinking that they may as well just call each of these agencies the "Ministry of Love" and get the Orwell analogy over with.

***UPDATE*** I should add that I find it almost absolutely certain that this case will get reversed should it be appealed. But the fact that it could even reach this point is a result of the subjective nature of defining "commercial speech."

***UPDATE II*** Doug Mataconis has a similar take on this over at The Liberty Papers.