On Monday morning, David Cole published a guest essay about 303 Creative in the New York Times. If you thought the legal director of the ACLU would defend the First Amendment rights of Lorie Smith, you obviously have not been paying attention for the last decade. But Cole did defend another artisan's First Amendment rights. Of all people, the photographer Annie Leibovitz! Cole explains that Leibovitz is in a different position than Smith, because her business is not open to the public. Rather, the world-renowned photographer chooses her clients. Therefore, Leibovitz is free to discriminate. Here is Cole's position:
First, no artist has to open a business to the public in the first place. Most writers, painters and other artists never do; they pick their subjects and leave it at that. The photographer Annie Leibovitz, for example, does not offer to take photographs of anyone who offers to pay her fee but chooses her subjects. She is perfectly free to photograph only white people or only Buddhists.
But if Ms. Leibovitz were to open a portrait photography business that offered to take portraits on a first-come, first-served basis to the public at large, as many corporate photography studios do, she could not turn away subjects just because they were Black or Christian. Her photographic work would be just as expressive. But the choice to benefit from the public marketplace comes with the legal obligation to equally serve members of the public. And requiring businesses that offer expressive services in the public marketplace to follow the same rules as all other businesses does not violate the First Amendment.
The Leibovitz example bespeaks how out of touch the ACLU has become. 99.9% of artists cannot afford to "pick their subjects and leave it at that." In order to eat and pay the rent, most artists take whatever work comes to them. And that process invariably means you open your business up to the public. Perhaps when an artist reaches stratospheric heights, like Leibovitz, she can be more choosy with her commissions. But virtually all artists will need some mechanism to advertise their services to the public–whether it is a storefront, a website, or even an Instagram page. And that advertisement would place them squarely in the confines of most public accommodation statutes.
