Right to Privacy v. Freedom of Expression in Case of “Peeping Tom” Photographer

July 21, 2013

A lawsuit arising from a recent photography exhibition at the Julie Saul Gallery in Chelsea, New York, pits the right to privacy against freedom of expression.  According to the MailOnline, photographer Arne Svenson acquired a telephoto lens in 2012 and began taking pictures through the large windows of apartments opposite his loft in Tribeca.  The exhibition of those pictures of ordinary people going about their ordinary lives inside their homes provoked a lawsuit by Martha and Matthew Foster, parents of two young children who appeared in the photographs: their four-year-old daughter, wearing a swimsuit, and their two-year-old son, wearing a diaper.  Although Svenson, when confronted by a lawyer, removed the photos of the Foster children from the exhibition, the Fosters want possession of all photographs and negatives or digital files of their children in Svenson’s possession and an injunction against further photographic intrusions. 

Svenson filed a motion to dismiss, claiming freedom of expression under the First Amendment.  According to the MailOnline, Svenson asserts that his neighbors are “performing behind a transparent scrim on a stage of their own creation with the curtain raised high.”  Obviously, some of the “performers” think differently.  They believe that, although they live in a crowded city and have big windows, they have a reasonable expectation of privacy and the right to be let alone.  The Fosters are concerned about the safety of their children following the display of their pictures in the gallery.

Mickey Osterreicher, general counsel for the National Press Photographers Association, commented, “Most people have this sense in New York because everybody lives so close together, because the sight lines are such, that you can very easily look into your neighbors’ apartment and they can look into yours, but I think the court may parse this out as looking is one thing and photographing is another.” 

Courts have frequently been called upon to decide where someone can have a reasonable expectation of privacy (usually one’s home) and where not (a public place, such as a park).  Therefore, it’s surprising that the motion to dismiss conflates the two by stating,“Both photographs [of the Foster children] capture children at play and the innocence of childhood, nothing more revealing than you might see in a neighborhood park.”

The right to privacy (“the right to be let alone”), was articulated and championed by future Supreme Court Justice Louis Brandeis and Samuel Warren in a groundbreaking article published in the Harvard Law Review, December 15, 1890.   

[Brandeis and Warren]…defined protection of the private realm as the foundation of individual freedom in the modern age… Traditional prohibitions against trespass, assault, libel, and other invasive acts had afforded sufficient safeguards in previous eras, but these established principles could not, in their view, protect individuals from the ‘too enterprising press, the photographer, or the possessor of any other modern device for rewording or reproducing scenes or sounds.’ …[T]hey concluded that legal remedies had to be developed to enforce definite boundaries between public and private life.  – Gallagher, Susan E., “The Right to Privacy,” by Louis D. Brandeis and Samuel Warren: A Digital Critical Edition (University of Massachusetts Press, forthcoming).

It seems ironic that, in the exhibition notes, Svenson declares, “for my subjects, there is no question of privacy…  The neighbors don’t know they are being photographed; I carefully shoot from the shadows of my home into theirs.”  That sounds exactly like what Brandeis and Warren were worried about.

Mr. Osterreicher believes that this case has been harmful for the image of photography and First Amendment rights due to the “bad taste” that has been left with the public.

Svenson’s viepoint and the building, across the street, that he photographed.

Sources: MailOnline, June 9, 2013; Gallagher, Susan E., “The Right to Privacy,” by Louis D. Brandeis and Samuel Warren: A Digital Critical Edition (University of Massachusetts Press, forthcoming); Harvard Law Review, December 15, 1890