By now, most of you have heard of or read about Shakira Rochelle, a photographer working in the Cincinnati, Ohio, area. A recent screenshot of a conversation between her and one of her clients made the rounds on Twitter recently, telling a very clear story: the client had hired Rochelle for a wedding, but when Rochelle posted in support of Black Lives Matter on Instagram, the bride texted her, cancelling her services and demanding a refund of her photo deposit. The bride claimed that she couldn’t work with anyone who didn’t understand that “all lives matter.” Rochelle responded crisply that the contract stated that the deposit was non-refundable and that she would be donating it to Black Lives Matter. The bride replied that she would contact her attorney. 

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Does the bride have a cause of action? While it’s impossible to say definitively without reading the contract, the answer is almost certainly no. The contract states that the deposit is non-refundable, and so it is non-refundable unless the bride could convince a court that this is somehow a force majeure, or impossibility, or frustration of purpose scenario, all of which are legal concepts that could potentially unravel the contract. However even in that situation, the deposit is often deemed earned once received because it served as legal consideration for reserving the date and booking the photographer.

Regardless, the situation is none of those. Force majeure refers to events that are beyond the control of either party, like earthquakes or pandemics; here, the bride wishes to cancel because she doesn’t like the photographer’s political message. Her own opinion is not beyond her control. Impossibility refers to outside events that render performance of the contract impossible. Here, the only thing rendering performance impossible is the bride’s beliefs, which are certainly not an outside event. Frustration of purpose refers to changes of circumstance that render performance of the contract unreasonably expensive or inconvenient to perform, and again, here the bride herself has created the change in circumstance, by deciding that she cannot accept a photographer who supports the Black Lives Matter movement. 

What’s more, many photography contracts will include a provision allowing the photographer to terminate the contract immediately upon discovery of information or behavior, either before or at the event, that the photographer finds offensive, unsafe or improper. Many photographers and lawyers, this one included, find the phrase “all lives matter” demonstrates a visceral lack of empathy or awareness of the lived experience of Black communities. The photographer was likely completely within her rights to terminate the contract, without a refund, had the bride not already canceled herself. 

As a photographer, you are free to choose who you work for, and you are more than free to choose not to sell your services to those people whose views are contrary to your own. Some will claim that this is hypocrisy, and that the Equal Protection clause of the 14th Amendment demands that all people be given the same treatment, but this is false: the 14th Amendment prevents discrimination on the basis of race, sex, religion, national origin and other immutable characteristics, i.e. aspects of one’s self that one cannot (or in the case of religion, should not have to) change. An opinion is not an immutable characteristic.

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, ASH LAW LLC, at Stark.Law LLC.

This article is for informational purposes only. Contact a lawyer for legal advice.