Failure to restrict speech or photography as
aconstitutionalviolation?
Volokh, Eugene
VOLOKH at law.ucla.edu
Wed Mar 21 14:03:19 PDT 2007
Last February, we discussed Nussenzweig v. diCorcia, which Marc
Stern summarized thus:
> > 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.
The Appellate Division has just held for the photographer, on
statute of limitations grounds, 2007 WL 819343 (Mar. 20); a concurrence,
though, reached the constitutional issue, held that the First Amendment
protects the photographer's speech, and rejected the plaintiff's
religious freedom argument because the Religion Clauses have "no
application to the private, individual action at issue in this case."
That strikes me as quite right.
I include part of the earlier thread below.
Eugene
Eugene Volokh writes:
Alan is certainly right that this is so as to limitations on
real property. Even there, though, I wonder if there would be a taking
if the limitations were *prospective* (to the extent that such a thing
is possible for real property, much of which has already been doled out)
-- if the state of Nevada, for instance, made clear that all newly
privatized land in the state were subject to this or that easement. I
would think that the answer would be "no."
The limitations on the right of publicity that Marc is alluding
to are, as I understand it, prospective. Nussenzweig never had a right
to stop others from photographing him; the law in New York, to my
knowledge, has been this way for a long time, and was likely this way
when Nussenzweig was born in or moved to New York. So I don't really
think that there'd be an analogy to a taking here. And I still don't
see why the courts ought to talk about Nussenzweig's Free Exercise
Clause rights, when the offending behavior is a private party's, not the
government's.
Finally, can it really be that my rights to communicate in
certain ways about people who belong to religion X would be less than my
rights to communicate in the same ways about people who belong to
religion Y? I think we don't even need to get to this question, because
the absence of state action makes any substantive Free Exercise Clause
argument irrelevant. But if we did get to it, I take it the answer
would be "no": The law doesn't and shouldn't limit my speech about
people (or institutions or symbols) who belong to some religions more
than it limits my speech about people (or institutions or symbols) who
belong to others.
Eugene
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Alan
> Brownstein
> Sent: Friday, February 10, 2006 10:13 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Failure to restrict speech or photography as
> aconstitutionalviolation?
>
>
>
>
>
> I always thought the most common legislative (or executive)
> restrictions on long standing common law rights involve
> limitations on the ability of a property owner to exclude a
> third party from entering or occupying his property without
> the owner's consent. The courts have often, but not always,
> held these to be a taking (See, e.g. Loretto, Nolan; but see
> Pruneyard.)
>
> To take Loretto, as an example, it is a compensable taking of
> one's property to require an apartment house owner to allow a
> small cable box to be placed on the building's roof -- where
> it does not interfere with any use of the property. But
> courts do not even have to talk about the burden on one's
> religious sensibilities and free exercise rights, when one's
> picture is appropriated for artistic purposes.
>
> Alan Brownstein
>
>
>
>
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Volokh, Eugene
> Sent: Friday, February 10, 2006 9:28 AM
> To: Law & Religion issues for Law Academics
> Subject: Failure to restrict speech or photography as a
> constitutionalviolation?
>
> A few thoughts on Marc's point about limits on common law
> rights:
>
> 1) I may be mistaken, but my recollection is that the
> New York right to control commercial use of one's likeness is
> a creature of statute, not common law; New York courts
> refused to recognize such a right when it was first urged to
> them around 1900, and the legislature stepped in with a
> fairly narrow statute.
>
> 2) Even in those states that have recognized a
> common-law right to control commercial use of one's likeness,
> limitations that allow news uses and artistic uses (though
> not commercial advertising uses), are routine *aspects* of
> the right, often developed by the courts alongside those
> rights. There's no categorical common-law right to stop
> people from photographing you without your consent; the right
> has always been substantially qualified.
>
> 3) More broadly, it seems to me that even if some
> departures from extremely old common-law entitlements might
> be state action, I'm not sure the same is true for much more
> modern developments. The right to control use of one's name
> or likeness, such as it is, is basically about 100 years old.
> It was developed during the era when legislative revisions
> of common-law principles had become commonplace. If a court
> creates a legal principle that the legislature thinks is
> unsound, it seems to me that the legislature can properly
> erase that principle, and return things to the state in which
> they were before the court-made principle (at least setting
> if the erasure is prospective, in the sense that it doesn't
> apply to specific property rights vested in specific people
> before the erasure).
>
> 4) But if one wants to look at legislative
> restrictions on really longstanding common-law rights, consider two:
>
> a) As I understand it, the tort of alienation of
> affections is centuries old, though in most states it has
> been abrogated, either legislatively or judicially. Say that
> John sincerely believes that Pete's luring away John's wife
> Mary violates John's religious principles, and contributes to
> undoing a sacred bond that John and Mary had (much as
> Nussenzweig sincerely believes that di Corcia's photographing
> of him violates Nussenzweig's religious principles). John
> sues Pete for alienation of affections. Pete replies: The
> alienation of affections tort had been abolished by the state
> legislature decades before. John's response: Ah, but that
> abrogates what would otherwise have been my common-law right,
> and thus violates the Free Exercise Clause. What result?
>
> b) The "common-law copyright," which was a perpetual
> right to bar the republication of one's unpublished works
> (and the unpublished works of one's ancestors, from whom this
> right descended to you), had been recognized for at least 200
> years, but in 1976 Congress abrogated the right. Henceforth,
> unpublished works are covered by copyright, but the copyright
> will indeed eventually expire. In 1980, Prophet Paul writes
> some sacred writings that are passed around his inner circle
> in an unpublished form. Paul dies the next year, and 70
> years after his death, the copyright falls into the public
> domain. Someone who is writing about the Prophet's religion
> republishes them, but Paul's heirs
> sue: The Prophet's writings, they say, should be covered by
> common-law copyright, which never expires, and publishing
> them also happens to be sacrilege. The publisher replies:
> The copyright in unpublished works has been limited by
> Congress to a term of life + 70 years. The Prophet's heirs'
> response: Ah, but that abrogates what would otherwise have
> been our common-law right, and thus violates the Free
> Exercise Clause. What result?
>
> Eugene
>
>
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