The Volokh Conspiracy

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The Annie Leibovitz Limiting Principle for 303 Creative

The ACLU inadvertently explains how Lorie Smith could prevail.


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.

This example also echoed another case pending before the Court this term: Andy Warhol Foundation v. Goldsmith. In the 1980s, Andy Warhol created a series of his distinct silk-screen paintings of the musician Prince. Warhol's prints were made using a photograph taken by photographer Lynn Goldsmith. Most people have heard of Andy Warhol, who has a similar cultural cache as Annie Leibovitz. But few people are familiar with the work of Goldsmith–even though you likely have seen her work. She has photographed some of the most iconic musicians, including Prince, Bob Marley, Bruce Springsteen, and others. Goldsmith contends that a ruling for Warhol would be based, in part, on Warhol's superstardom. Her brief explains:

AWF's [Andy Warhol Foundation's] contention (at 50-51) that "Warhol's unique style is the very thing that gives the Prince Series its distinct message" would treat any "difference in style" as transformative, "weaken[ing] the protection of copy-right." Campbell, 510 U.S. at 599 (Kennedy, J., concur-ring). Under AWF's test, every Warhol-style silkscreen conveys a different message from the original photograph. That "logic would inevitably create a celebrity-plagiarist privilege; the more established the artist and the more distinct that artist's style, the greater leeway that artist would have to pilfer the creative labors of others." Pet.App.27a; see AIPLA Br. 27-28. No one doubts Warhol's artistic innovations. But Warhol charged for his art and AWF will continue profiting, including by vigorously asserting Warhol's copyrights. Fame is not a ticket to trample other artists' copyrights.

And fame is not a ticket for special First Amendment exemptions. Under Cole's arguments, the only artists that could receive a carve-out from the public accommodation laws would be those artists so famous that business falls in their lap. I would never have expected such an elitist argument from the ACLU. Starving artists apparently don't need their constitutional rights.

Yet, implicit in Cole's essay is a rationale why Lorie Smith should prevail. Anne Leibovitz is an artist of one. She is the creative genius that celebrities around the world seek out. If Vanity Fair commissioned Lebovitz to photograph the Vice President, and she offered the contract to a junior associate at the JCPenney Portrait Studio, Vanity Fair would probably decline. In other words, there is only one person on team Leibovitz who has the artistic skill to make the photograph happen. (In fairness, my family takes their portraits at JCPenney's, and is very pleased with the quality of work.)

Now, back to 303 Creative. Lorie Smith has not achieved the superstardom of Annie Leibovitz. It's okay. Most people never will. But Smith still seeks to ply her digital design skills to tell the stories of married couples. Art is art. I'm sure Smith would appreciate the market power in which she could pick and choose her commissions, like Leibovitz does. That's not going to happen. Still, in a way, Lorie Smith resembles Annie Leibovitz: both are the principal artisans in their firm. And if they do not take the job, no one else at the firm would do it.

This dynamic is familiar. Virtually every case involving a wedding service provider involves a small, close-knit company. Elane Photography was owned by a husband and wife. Masterpiece Cakeshop was owned by a husband and wife. Telescope Media was owned by a husband and wife. And 303 Creative has a single employee–Lorie Smith.

The amicus brief for the Jewish Coalition for Religious Liberty, which I co-authored with Howie Slugh, makes an observation:

An obvious pattern emerges from this litigation. These disputes involve not just closely-held companies—like Hobby Lobby—but close-knit companies. There are usually one or two owners, often members of the same family. In Hobby Lobby, only the owners shared religious beliefs, while employees had a wide range of faiths. But for these close-knit firms, the artists who actually perform the creative work share the same religious beliefs, and object to creating a specific wedding-related product. And, in these close-knit firms, the creative work cannot be passed onto another in-house artist with different religious beliefs. Indeed, these artists of faith likely work in such religious-centric businesses precisely so they can follow their beliefs while plying their trade.

In honor of David Cole, let's call it the Annie Leibovitz limiting principle: whatever rule the Court adopts can be limited to such closely-knit firms in which the only artisan(s) who perform the creative services objects to speaking, and no one else at the firm can create those bespoke products. I think this limiting principle would capture almost 100% of the wedding service provider cases of late, which all involve closely-knit firms. And this limiting principle would avoid almost the entire parade of horribles that Colorado and the United States warned about.

I realize that Part I of the JCRL brief made headlines for some humorous hypothetical questions, but Part II, which explains this limiting principle, may prove even more useful.