Re: New yORK Lawsuit

[David E. Guinn]

This seems to me to be very consistant with the general tendency in the courts to treat free exercise rights as a subsidiary of free speech rights (i.e. Rosenberger).  I agree with Marc that in one sense it appears insensitive to not at least acknowledge the religious free exercise interest -- but if the judge did, what would he say: we hold religion doesn't rate?  On a political basis, it is much easier to dodge the bullet.   David ----- Original Message ----- From: Marc Stern To: Law & Religion issues for Law Academics Sent: Friday, February 10, 2006 10:22 AM Subject: RE: New yORK Lawsuit I do not disagree that ordinarily consent is not required .Perhaps because of that consent should not be required  when the artist would have no reason to think that a particular subject would have religious objections to being photographed. I do find it curious that the court seems to assume the value of secular first amendment rights and gives no thought (at least according to the law journal summary) to religious first amendment rights .The court did express some sympathy for plaintiff but not at the level of law. Marc Stern   From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sanford Levinson Sent: Friday, February 10, 2006 10:59 AM To: Law & Religion issues for Law Academics; Law & Religion issues for Law Academics Subject: RE: New yORK Lawsuit   I think that one can limit the "practice of one's faith" to a refusal consciously to be photographed.  (This, obviously, arises in the drivers' license cases.)  I am not persuaded that a serious art or news photographer must get the consent of everyone he/she surreptitiously photographs, even if the photographs are to be sold in a market.  (I'm curious:  Did Alfred Eisenstadt get release forms from the famous couple he photographed in Times Squareon V-J Day?)  All of us run certain risks when we enter the public square.   sandy   From: [EMAIL PROTECTED] on behalf of Marc Stern Sent: Fri 2/10/2006 8:21 AM To: Law & Religion issues for Law Academics Subject: RE: New yORK Lawsuit   Today's NY Law journal reports on Nussenzweig v. di Corcia in which a Hassidic Jew with religious objections to be photographed sued a photographer who took a surreptitious picture of the plaintiff and sold 10 prints for between 20-30000 dollars. New York law permits artists to use other persons images for artistic, but not for commercial, purposes. The narrow question was whether the sale of a few copies of the picture for substantial sums artistic or commercial. In the course of holding it was the former, the court (according to the law journal) noted that New York law favors freedom of artistic _expression_. For some reason, the court thought it irrelevant to observe that the protection of those first amendment rights came at the expense of other first amendment rights that of the plaintiff to freely practice his faith without state interference, here in the form of allowing the reproduction of his image without his consent. Marc Stern _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

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