Andres Serrano must have expected his infamous work, "Piss Christ," to generate righteous indignation from some Christians. And the Danish newspaper Jyllands-Posten should have anticipated that when it published a dozen cartoons satirizing the prophet Muhammad, some sectors of the Muslim community would be upset. For some people, "religion" and "ridicule" can't coexist. Just ask the Rev. Jerry Falwell how he felt about his satirical depiction in a cartoon parody in Hustler magazine in November 1983. He was so angry he went all the way to the U.S. Supreme Court — where he lost.
But who would have anticipated that the publication and sale of a collection of portraits by a prominent photographic artist would spark a collision between two competing clauses of the First Amendment? It was up to a New York state trial judge to sort it out in early February, against the backdrop of the violent protests over the Muhammad cartoons.
Between 1999 and 2001, photographer Philip-Lorca diCorcia set up a camera in Times Square and took a series of candid pictures of passersby. He didn't get permission from his subjects. Presumably, he was confident that he could legally take a photograph of someone on a public street without first obtaining that person's consent.
DiCorcia chose 17 photographs to create an exhibition called the "Heads" collection, which he displayed at a New York art gallery for a few weeks in 2001. The photographs were published in a catalog; the exhibition received favorable reviews in the press; and edition prints sold for thousands of dollars.
One of the portraits in diCorcia's collection was of Erno Nussenzweig, a Klausenberg Hasidic Jew. All 10 of the edition prints of his picture were sold for up to $30,000 each. When he learned about this, Nussenzweig sued, claiming the photographer violated the New York state privacy statute that prohibits unauthorized use of an individual's likeness "for advertising purposes or for the purposes of trade." He argued that because diCorcia intended to sell the photographs, he had taken them for commercial purposes. Nussenzweig asked the court for damages and an injunction to stop diCorcia from further disseminating the photographs.
DiCorcia countered that New York courts have consistently ruled that when an image is used to create "art," it is exempt from the privacy law as constitutionally protected free speech even if it is sold for profit. Judge Judith J. Gische held that diCorcia's work was sufficiently creative to constitute "art" and agreed that "[F]irst [A]mendment protection of art is not limited to only starving artists."
But Nussenzweig also contended use of the photograph interfered with his First Amendment right to practice his religion. As a Klausenberg Hasidic Jew, he believes use of his image violates the Second Commandment's prohibition against graven images. It didn't matter that diCorcia called the photograph "art." To Nussenzweig, it was an abomination.
Gische acknowledged Nussenzweig's beliefs were sincere and his distress genuine. But she ruled these considerations must yield to the First Amendment protection for diCorcia's artistic expression "even in the face of a deeply offensive use of someone's likeness." This protection exists, she wrote, "notwithstanding that the speech or art may have unintended devastating consequences..or may even be repugnant. They are..the price every person must be prepared to pay for in a society in which information and opinion flow freely."
Nussenzweig didn't resort to guns or arson to make his case. Instead, he wielded that potent American weapon — a lawsuit. (His lawyers say he plans to appeal, according to the Associated Press.) But the editors of U.S.-based news organizations weren't expecting to be sued if they republished the Muhammad cartoons. Nor did most editors cite fear of violence as their primary motivation for withholding the images. Instead, they said they didn't want to cause offense. Many also rejected the argument that they should enable the American public to see what was causing all the furor. They contended that a written description would be enough.
Some would agree. Devout Muslims believe that any depiction of the prophet violates Islamic tradition. The image could be as reverent as the paintings on the ceiling of the Sistine Chapel or as respectful as the carving depicting Muhammad in a frieze that adorns the north wall of the U.S. Supreme Court's courtroom. Any kind of representation is forbidden — just as Nussenzweig's religion prohibits any photograph to be taken of him, no matter how artistic it may be.
So if you really intend to show respect, you may have to give up more expression than you'd planned. But it certainly makes things simpler. It is no longer a question of taste or even of news judgment. Avoid any subjects or words or images that cause offense to someone, somewhere, and you'll be fine. Like the U.S. Internet companies that comply with China's laws restricting access to "subversive" words like "democracy," all that's required is to figure out what upsets people, if you can, and avoid it. It's just good business.
But it isn't good journalism.