20 March 2006

A Horrible Parade

And I'm not referring to the St. Patrick's Day parades last week. In most cases, they're just in bad taste—the Elvis-on-velvet of civic events.

No, what I'm referring to is a variety of the "slippery slope" argument often described as the "parade of horribles." A disturbing case in New York City resulted from both sides invoking the parade of horribles as their primary means of persuasion. A photographer set up in Times Square, took pictures of passersby on public land, and included some of the photographs in both an exhibition and a book. An Orthodox Jew took exception to having his picture included, asserting that it violated his religious privacy and beliefs regarding "graven images."1 The New York court sided with the photographer and dismissed the matter on the ground that New York statutes explicitly exclude "art" from privacy claims.

On the one hand, the plaintiff's parade of horribles essentially implies that his religious freedom is permanently at issue if we allow public photography. Perhaps even his soul is at risk; that would be the case for certain tribal cultures in sub-Saharan Africa (among other places), which believe that an image steals the soul. Losing one's soul by coincidence while passing through Times Square… wait a minute… never mind. On the other hand, the defense case essentially claims that artistic progress and the rights/abilities of photographers everywhere to practice their "art" would be essentially eviscerated if the plaintiff's claim were allowed to go forward. There would be no more images like the famous Eisenstadt photo of a sailor kissing a nurse on V-J day; the public could no longer be "educated and illuminated by great street photography"; there would be locusts (although one must wonder whether the locusts, too, might have a cause of action).

The real problem is that the dispute has been put in terms of two sets of incongruent rights. The right to create (and display) "art" is not parallel to religious freedom, except at certain extremes that usually involve fairly extreme beliefs. In this particular instance, "religious freedom" has been bootstrapped into a claim for "invasion of privacy," which is closer to "art" in the same way that Jupiter is closer to the sun than is Saturn: on any human scale, the distances are still immense. The judge's comment that the plaintiff's claim "is not redressable in the courts of civil law" reveals the real slippery slope: Modern society leaves few, if any, avenues for obtaining redress, or vindication, or any of the other psychological benefits to resolving a dispute, that do not involve legal process. Thus, the legal system must participate in the parade, often leading to really strange results—and even stranger contexts.

  1. Necessarily, the plaintiff has never been to (and will never visit or move to) Israel. He'd need a passport… which includes a photograph. The prohibition on "graven images" does not concern public display of them; it concerns making them in the first place. Whether a photograph qualifies as "graven" is a theological point well beyond my poor ability to split hairs.