Friday, September 6, 2013

Freedom of expression vs individual privacy

In 1890, Samuel Warren and future Supreme Court Justice Louis Brandeis published The Right to Privacy, which made their case for recognition of invasion of privacy as a legal tort.
Fifteen years later, in the case Pavesich v. New England Life Insurance Company, a Georgia court was the first to rule on the balance between the right to privacy over freedom of the press, when it found that Mr. Pavesich had been wronged by the appearance of an unauthorized advertisement in which his photograph appeared. The court at that time ruled that commercial usage did not have the same press protections as other forms of use.
Earlier, in 1893, the case Corliss v. Walker had set the related precedent that non-commercial use, in this case an unauthorized biography, was indeed an example where press freedom's inherent public interest could not be overruled by the right to privacy. These two cases along with the abovementioned "The Right to Privacy" have become the basis for almost all US law with respect to the balance between freedom of expression and individual privacy.
In 2006, a New York trial court issued a ruling in a case involving Philip-Lorca diCorcia, who had set up elaborate strobe rigs on a New York City street corner and had photographed people walkng down the street, including Emo Nussenzweig, an Orthodox Jew who objected on religious grounds to deCorcia's publishing in an artistic exhibition a photograph taken of him without his permission. The photo's subject argued that his privacy and religious rights had been violated by both the taking and publishing of the photograph of him. The judge dismissed the lawsuit, finding that the photograph taken of Nussenzweig on a street and sold for hundreds of thousands of dollars is art - not commerce - and therefore is protected by the First Amendment, even though his religion forbids it.

Manhattan state Supreme Court Justice Judith J. Gische ruled that the photo of Nussenzweig--a head shot showing him sporting a scraggly white beard, a black hat and a black coat--was art, even though the photographer took it surreptitiously near New Yorks' Times Square and then sold 10 prints of it at $20,000 to $30,000 each. The judge ruled that New York courts have "recognized that art can be sold, at least in limited editions, and still retain its artistic character. . . . First Amendment protection of art is not limited to only starving artists. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes."
Some other restrictions on photography exist in the US, but most have to do with either commercial use of a space, such as forbidding photography inside a private building, or national security, such as restrictions on airport security areas or military installations.