Musings on Photography

Consequences

Posted in business, ethics by Paul Butzi on April 12, 2008

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Probably some of the readers of this blog are wedding photographers (I know of at least two), but I’m guessing most of us aren’t. So it might seem to those of us who are not that this issue doesn’t really touch us. That’s what I thought at first, too.

For the past month or so, I’ve been working on cleaning up my website, moving it from being maintained with Microsoft Frontpage to tools on the Mac, and getting rid of out of date content, changing my print pricing, and so on. One of the things that was on my list was lowering the prices I was going to charge for doing printing for people, and in particular the prices for doing large prints. I was actually tackling that task this morning, editing the pricing formula for printing on this page when I came across the following words:

I reserve the right to refuse to print any image, at my discretion.

I didn’t have some particular category of image in mind when I wrote those words. That sentence was just my nod to the fact that there are images that I would not want to print. Which images make me sufficiently uncomfortable that I would refuse to print them – that doesn’t much matter, and I expect that pretty much everyone on the planet has some category that they think is over the line.

Well, I can reserve the right to not print images all I want, but apparently the human rights commissions of the world may well decide that I’m discriminating against a protected class of person if I refuse to print something. The potential damages from having the Washington State Human Rights Commission or the King County Human Rights Council fine me are substantial. The standard of proof for both seems very low, there seems very little a person can do if the ruling goes against you, and in any case, a complaint will cost a lot to defend even if in the end the complaint is dismissed.

So I’m left with a dilemma. I like providing printing services. There aren’t many places that offer to do big prints for individual photographers at prices that leave room for the photographers to sell the prints and make a profit. Virtually none of the places that offer the pricing I do offer the sort of handholding I do – I’m happy to help people through what profiles they should use with the images they send me, help them decide how big an image can be printed and still look good, and help them deal with the issues of making big prints, including sharpening and stuff. I find that sort of thing fun. My plan was to that with the big web site update I would start offering more interpretive printing services – you send me the raw image, I do my best to make the best print possible. I’ve gotten lots of requests for that.

On the other hand – it’s not a big money source for me. It pays enough to subsidize my personal work, and I expected the actual profits to rise when I dropped prices in the next few weeks. But I’m not sure I’m willing to give up the right to refuse to print images that I think are outside the pale.

So for the rest of the morning, as I do chores, I’ll be pondering whether the game is worth the candle. At this point it seems pretty clear that it’s not. There’s no way I can justify the meager profits in the face of the risk, especially the risk that someone will read those words “I reserve the right to refuse”, and come gunning for me just to set a precedent with the local Human Rights Commision.

Legal arguments often talk about the ‘chilling effect’ of certain decisions as if it were a purely abstract thing that didn’t actually happen in the real world. I can assure you that’s not the case.

20 Responses

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  1. sjconnor said, on April 12, 2008 at 12:56 pm

    I doubt the Human Rights Commission would have a problem with you not printing something if your reason for not doing so was that you felt it was an inferior image and you were unwilling to print it under any circumstances. If, on the other hand, you refused to make a print for one person because of their race, their religion, their sexual preference, etc., while happily printing it for people you approved of, the H.R.C. very likely would, and justifiably so, have a problem with your behaviour.

  2. Paul Butzi said, on April 12, 2008 at 3:42 pm

    I doubt the Human Rights Commission would have a problem with you not printing something if your reason for not doing so was that you felt it was an inferior image and you were unwilling to print it under any circumstances.

    You might be right. Or, then again, you might be wrong.

    The problem is that the standard of proof at the two Human Rights Commissions that have jurisdiction is that the standard of proof used is not the ‘beyond a reasonable doubt’ standard of criminal court, nor the ‘preponderance of evidence’ of civil court. Instead the standard seems to be ‘reasonable cause to believe’. I’ve no idea what that might mean, but it would appear to fall lower than ‘preponderance of evidence’. In other words, the evidence of my purported discriminatory act need not meet the standard required to prevail in court, but need only meet some undefined lower legal standard.

    So while you can doubt that the Human Rights Commission would not have a problem with my refusing to print an image based on the image content, I am far less sanguine about it. Add in the fact that even if I prevail, I still must bear the burden of defending myself, and the person filing the complaint incurs no cost at all, and things become even more bleak.

    That’s because my printing business is small, and it doesn’t generate much income. But on the flip side, it does seem to generate considerable risk. If someone decides they don’t like me, all they have to do is send me an image they calculate I’ll refuse to print, file a complaint (even, dare I say it, and unjustified complaint) with the HRC, and I’m in the deep weeds. There’s no way my little business can generate the income needed to offset that sort of risk. It’s not just the financial risk, it’s the risk to my personal reputation if the HRC decides to brand me a bigot. It’s the risk of being sentenced to ‘training’.

    I’m fine with laws that stipulate that my business may not discriminate on the basis of race, sex, sexual orientation, religion, creed, etc.

    I am not fine with laws that stipulate that in order to do business, I must relinquish my rights to my own freedom of expression and freedom of religion. I confess I don’t understand why I’m required to relinquish rights but the customer is not.

    So my printing business is now closed. There is now absolutely no chance my business will discriminate. There is also no chance that anyone can avail themselves of the services I used to offer. That makes me sad and fills me with resentment. Other people, perhaps, can judge if this is a net win for society. I think it is not.

  3. ron said, on April 12, 2008 at 4:00 pm

    “The government” (in your case the various HRCs) is not only the law but those who enforce it, and it’s a given that those will sometimes be overzealous (or capitulate to “victims” too readily). It seems to me that abandoning your business out of fear of such a prosecution is akin to staying locked in your house for fear of getting mugged. In the time I’ve been following such things, I’ve only heard of this one case, whereas other sorts of abuses (e.g. cops accosting photographers on the street as potential terrorists) are much more prevalent.

    You seem very reactionary, and to what I don’t know. Perhaps it’s to the powerlessness you feel against those who might disagree with you. If this is even partly the case, all I can say is “join the club”; the laws about which you speak are passed and prosecuted to protect those who often have no more effective tools than the law to overcome their own powerlessness, sometimes against the majority. And once having those laws, some may abuse them.

    That they may do so, it seems to me, should not be a basis for your decision to stay in business, but rather the likelihood of them doing so.

  4. Paul Butzi said, on April 12, 2008 at 5:11 pm

    It seems to me that abandoning your business out of fear of such a prosecution is akin to staying locked in your house for fear of getting mugged.

    No, a better analogy would abandoning the printing business is akin to realizing that there are muggers whose right to mug me is apparently protected by law, that I need not frequent the neighborhood where they mug people, and deciding to pass through that neighborhood.

    I don’t need the printing business to put food on my table. Should I take an avoidable risk, however small, for something that offers insufficient rewards to offset the risk? Answer: no.

    That they may do so, it seems to me, should not be a basis for your decision to stay in business, but rather the likelihood of them doing so.

    Right. It’s a matter of risk tradeoff. Is the reward I get from the printing business worth the statistical risk of someone with an agenda coming after me this way? Well, the rewards are small. The risk, while not large, is also not zero. You (and others) seem to view the risk as vanishingly small. I see the risk as large enough to make me wary. Net result: business closed.

    You think this means I’m reactionary. I think it means I’m careful. The likelihood that the next time I drive to town to pick up the mail I’ll be in an auto accident are small. Nevertheless, I’ll wear a seatbelt, because the rewards of not wearing a seatbelt are not enough to offset the very small risk of that accident. That’s being careful, not reactionary.

  5. sjconnor said, on April 12, 2008 at 8:19 pm

    Frankly, I think the “proof” that you’re refusing to print something due to artistic, rather than discriminatory, reasons would be pretty easy to provide. If you’re not printing something for sale due to the former, then no one will have ever bought a print of that file from you. “No Sale” can’t be all that tough to prove. If the complainant (assuming there ever actually was one, which I rather doubt) can’t show the H.R.C. that you’ve been providing prints to other folks but refusing them, well, ain’t much of case is it? And the H.R.C. would say the same thing.

  6. Sean said, on April 12, 2008 at 9:15 pm

    ““The government” (in your case the various HRCs) is not only the law but those who enforce it, and it’s a given that those will sometimes be overzealous (or capitulate to “victims” too readily). It seems to me that abandoning your business out of fear of such a prosecution is akin to staying locked in your house for fear of getting mugged.”

    You really need to pay attention to what is happening up north of you here in Canada:

    http://www.ezralevant.com/

    (Good place to start.)

    This will be you folks in ten years unless someone takes a stand.

  7. Paul Butzi said, on April 12, 2008 at 10:50 pm

    Frankly, I think the “proof” that you’re refusing to print something due to artistic, rather than discriminatory, reasons would be pretty easy to provide. If you’re not printing something for sale due to the former, then no one will have ever bought a print of that file from you.

    You are confused. I’m not discussing selling prints of my own work.

    I’m discussing the business model where someone gives me an image to print, I print it, and they end up with the print and I end up with money.

    Clear, now? Because I don’t know how to make it any clearer in the original post on which you are commenting than linking to the page that describes in detail the service I was once offering. And when you post responses that clearly ignore that, I have to admit that it tries my patience, which is not exactly in abundant supply today.

  8. Martin Doonan said, on April 13, 2008 at 2:13 am

    Paul, I have a lot of sympathy for you. The World has gone Rights mad and you’d better be in some sort of minority to warrant any these days. It also seems that this sort of action (with the concomitant low burden of proof) has no offer on indemnity: individuals and businesses can cover themselves in advance against all kinds of things but not “discrimination”.
    I’m now part of the great oppressed majority: middle aged white blokes.

  9. Ed Richards said, on April 13, 2008 at 6:07 am

    You are ignoring the flip side of our current society, the one Jock Sturges ran into. The only reason the human rights commission will get involved is discrimination against various minority groups who are involved in otherwise acceptable behavior. My guess is that the images you would not want to print are going to be images that a politically correct group like the HRC would find horrifying, in which case you would have no problem at all. Subjection of women, children in potentially sexual settings, probably any explicit sex, you can fill in the list with your own taboos. No HRC is going to want to be seen as endorsing any thing remotely controversial in the politically correct world.

    I would rewrite the waiver:

    I reserve the right to refuse to print any image that will not produce a technically acceptable print. I also reserve the right to refuse to print any image that may infringe the legal rights of others or violate statutory or regulatory norms.

    If you ever get a close call, ask the HRC or your local DA for an opinion.

    As for the wedding photographer controversy, I do not think there is much to be learned from it unless we get the full back story.

  10. Paul Butzi said, on April 13, 2008 at 8:13 am

    You are ignoring the flip side of our current society, the one Jock Sturges ran into. The only reason the human rights commission will get involved is discrimination against various minority groups who are involved in otherwise acceptable behavior.

    I don’t disagree. I would just observe that some of the ‘acceptable behavior’ images might be things I would refuse to print. ‘Acceptable behavior’, I would think, would include constitutionally protected free speech.

    In other words, a person has a legal right to display a poster that says “” which includes an offensive and disgusting photoshop constructed image. (I am avoiding picking a concrete example because I don’t want this to be about the politics of the statement)

    I support that persons right to make that statement. I believe that they have every legal right to make that poster, and I believe that if they conform to the legal requirements they have every right to put that poster on their car, their house, or put it on a placard and walk around town displaying it. If someone tried to strip them of that right, I would be moved to act to defend their right to freedom of expression.

    At the same time, if that person comes to me and wants me to print the poster for them, I believe I should have the right to refuse. The poster is legal, the person who wants me to print it is a member of a protected class (virtually everyone is, because discrimination based on creed is illegal), so if I decline to print it, I am in the deep weeds.

    Maybe I’m wrong, but I’m having a hard time believing that if someone files a complaint in this situation, the HRC will not rule against the affluent white male. Please remember that I live in a place where the school board published material on discrimination that explicitly stated that only white people can be racist and only men can be sexist. I’m not arguing whether those statements are true, I’m just observing that in such a situation, I’m skeptical that the HRC is going to find that I’m not guilty.

    Even if the HRC *would* find in my favor, I still lose. The person filing the complaint incurs no cost. Zero. Zip. Nada. They file the complaint, they don’t have to pay legal costs, they don’t have to spend time on the process, they have zero costs. I, on the other hand, would have to pay substantial time and legal costs. No matter what, I lose.

    We can argue about how this is necessary if powerless people are to be able to file complaints. The pragmatics, however, are that it gives someone with an agenda a weapon which is free to use and never misses.

  11. Sean said, on April 13, 2008 at 9:28 am

    “At the same time, if that person comes to me and wants me to print the poster for them, I believe I should have the right to refuse. The poster is legal, the person who wants me to print it is a member of a protected class (virtually everyone is, because discrimination based on creed is illegal), so if I decline to print it, I am in the deep weeds.”

    Sort of like what happened to Scott Brockie here in Canada?

    http://tinyurl.com/6beero

  12. Sean said, on April 13, 2008 at 9:38 am

    Here’s another good one. A plastic surgeon in Canada refused to perform cosmetic surgery on the labias of two transsexuals because, not being familiar with the results of sex change surgery, he was concerned he would do more harm the good. So he said no. Transsexuals are a “protected class” in this country and you’re not allowed to deny them a medical service even when it’s for a perfectly valid reason:

    http://tinyurl.com/6kvf2m

  13. Bryan Willman said, on April 13, 2008 at 10:31 am

    I’m not going to argue the risk/reward.

    Rather, I will suggest that risks are everywhere, and this one is probably overblown compared to other risks. I actually think it’s rather more likely that you’ll print a file for someone who does not own the image, and the image owner will sue everybody in site, including innocent you. (Which is another reason to not make prints for others, and especially to not handhold the making of prints for others.)

  14. Sean said, on April 13, 2008 at 2:02 pm

    Would you like more examples from Canada, Bryan? It’s not like I don’t have a fair number of precedents set by aggrieved minority groups to choose from.

  15. Robert said, on April 13, 2008 at 7:40 pm

    I’m sorry if a US view is not germane to the discussion; I’m completely unfamiliar with Canadian law. That said, I think Paul’s decision is a great example of free-markets responding to social pressure in either country.

    If you feel you can’t do business within the framework of business laws or feel that your personal beliefs may one day conflict with business laws, then close shop. No one can force you to obey or pay the penalty for breaking an anti-discriminatory ruling if you’re not making money off the public for a service/product. It’s simple.

    Paul, the reason a business owner can not refuse a publicly-available service based on their personal beliefs (religious, moral, or whatever): businesses are not guaranteed the same freedoms as guaranteed to individuals in the founding documents of the US (not sure about Canada, but perhaps the same?). You are guaranteed the right to your religious beliefs as an individual, but nowhere is your business guaranteed the right to offer a service to the public with restrictions based on those religious beliefs.

    Whether that’s right or wrong is subject to debate, but I think there are far more examples to show why we should enforce anti-discriminatory laws in business settings than why we should let religious beliefs trump equal protection laws. A personal one for me: I can eat in the same part of the restaurant as my white girlfriend, no matter what religious beliefs the restaurant owner has on mixed-race couples. 50 years ago in my beloved South… good luck.

  16. Maarten said, on April 14, 2008 at 6:40 am

    I think there is a difference between *what* you don’t want to do and *for whom* you don’t want to do it for. In the case of the wedding photographer she did not want to do something for a gay couple what she would have done for a heterosexual couple. So it would depend on the reasoning when you decline to print a picture if you would get sued by the HRC.

  17. Paul Butzi said, on April 14, 2008 at 10:07 am

    Whether that’s right or wrong is subject to debate, but I think there are far more examples to show why we should enforce anti-discriminatory laws in business settings than why we should let religious beliefs trump equal protection laws. A personal one for me: I can eat in the same part of the restaurant as my white girlfriend, no matter what religious beliefs the restaurant owner has on mixed-race couples. 50 years ago in my beloved South… good luck.

    Yes. All this is true.

    And I think it’s a shame that if I were still running the printing business, and someone came to me wanting me to print a poster calling for a return to racially segregated restaurants, I would not have the legal right to refuse to print that poster. “Oh,” they would claim, “you’re refusing us service based on our creed.”

  18. Andy Frazer said, on April 14, 2008 at 10:47 am

    You are right to be concerned. A few years ago, a local camera store lost a lawsuit for over $50k because the owner refused to print a photograph of a customers’ ancestors. The camera store owner believed that the photograph included people who belonged to a Zionist terrorist organization:

    http://losgatosobserver.com/los-gatos/Article.php?article_id=0194

    Andy Frazer

  19. Andy Frazer said, on April 14, 2008 at 10:52 am

    I forgot to mention in my previous post that 1) the store was in Los Gatos, CA, 2) the store was forced to close because of this lawsuit: http://www.jewishsiliconvalley.org/jcn/03_2007/losgatoscamera.htm

  20. Anita Jesse said, on April 15, 2008 at 4:38 pm

    I wish I shared the confidence of some that these types of laws governing our businesses will work out just fine with decent, intelligent, and reasonable people administering them. Sadly, too many examples in the implementation of previous intrusions into our lives and businesses fail to reassure me. Indeed, as a “seasoned citizen” I have lived long enough to see alarming examples of the ways in which our lives and businesses are increasingly choked by small-minded bureaucrats.

    If Paul were applying for a license to operate the only printing service in the United States—perhaps campaigning to be appointed the Commissar of Printing, then I could see the need to ensure that Paul didn’t turn anyone away on the basis of his personal taste or values. But, with hundreds of competitors, what harm to the customer if he can simply deem Paul a fool for passing on a job, then turn to one of Paul’s many qualified competitors?

    The main issue seems to be that Paul, by refusing the job, will have made clear his disapproval of the image and perhaps the message conveyed. Heaven forbid, Paul will have disrespected, or made uncomfortable, or offended someone. Now the bureaucrats must swoop in and insist that Paul be punished for his criminal behavior.

    The bottom line with these types of laws is that the customer will retain his right to his values and principles while Paul, the businessman is entitled to none. It has been well argued that, by going into business, the businessman gives up his right to exercise taste and value, but I say what a shame. Exercising taste and making decisions based on our values is a fact of life. The fact is that those who wish to stamp out my values and take away my right to base my decisions on those values are the most willing to establish their values as standards to which I must then adhere.

    I prefer that every businessman be given free rein to implement an utterly disastrous business model should he choose. Let him offend as many people as he wishes. After all, what harm if he eventually has either a small and faithful clientele who share his out of the mainstream ideas, or he eventually fails miserably because so few are willing to put up with his standards. He took the risk of setting up shop. Let him be master of his own fate. If he didn’t set up his business with public money, whose concern is it? Even if Paul wanted to be a cantankerous old coot who only agreed to print one out of every ten jobs he was offered, how would he harm anyone else? My values and principles are precious to me and deeply rooted in my being. They are not shaken by disapproval or rejection from some stranger, some shop-keeper who hurts my feelings by disapproving of me. Besides, it’s a myth that we are in the process of eliminating values and standards from business transactions. Instead, we are in the process of substituting one set for another and for standardizing all values to suit the group with the most political clout.


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