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Posts Tagged ‘freedom of speech’

State Court Affirms Model’s Right to Sue for Unauthorized Use of Her Photo in an AIDS Public Service Advertisement

Posted on: March 25th, 2014 by Art Leonard No Comments

New York Supreme Court Justice Anil C. Singh rejected a motion by an “image distributor” to dismiss a model’s lawsuit seeking compensatory and punitive damages for the unauthorized publication of her picture in a public service advertisement placed in print media by the New York State Division of Human Rights to inform people living with HIV about legal protection from discrimination. The March 6 ruling was published in The New York Law Journal on March 24.

The defendant, Getty Images (US) Inc., “is in the business of licensing stock photographs on the Internet,” according to Justice Singh’s opinion, summarizing the allegations in Avril Nolan’s complaint. Getty acquired Nolan’s image from a photographer named Jena Cumbo. Cumbo had not obtained a written release from Nolan authorizing the use or sale of her picture, but nonetheless sold it to Getty, which then licensed it to the New York State Division of Human Rights, which used it to illustrate an advertisement placed in newspapers with the caption: “I am positive (+) and I have rights” and “People who are HIV positive are protected by the New York State Human Rights Law. Do you know your rights? Contact the NYS Division of Human Rights.”

Nolan is not HIV-positive, and alleges that the appearance of this advertisement has caused her emotional distress and actual harm, as it has led people to think that she is infected with HIV. Her lawsuit relies on the New York Civil Rights Law, Sections 50 and 51, which makes it unlawful for anybody to use a person’s image for trade or advertising purposes without getting their written permission, and authorizes individuals to sue for damages.

Moving to dismiss the case, Getty argued that “displaying and licensing a photograph are, as a matter of law, not advertising or trade uses” under the civil rights law, and to impose liability in this case would violate Getty’s First Amendment rights. Getty argues that it is merely licensing the photograph, and that it is the “end-user” of the photograph, if anybody, that would be liable to Nolan for its public display in this context. Getty argued that the law did not require it to “investigate the existence or validity of every image release on its database because such duty would be inconsistent with the First Amendment.” Getty also emphasized that Nolan is a model and willingly posed for a commercial photograph, so could hardly argue that the subsequent use of the photograph violated her right of privacy.

“Contrary to Getty’s argument, a claim lies for placing Nolan’s image in Getty’s catalogue, especially where plaintiff’s photograph is ultimately used in an advertisement, and the use of plaintiff’s likeness created a false impression about plaintiff,” wrote Justice Singh. Furthermore, he rejected Getty’s argument that the New York State Constitution affords “heightened free speech protections to commercial speech.” Actually, quite to the contrary, commercial speech generally enjoys less protection than political or artistic speech, and the New York courts have repeatedly rejected constitutional challenges to the Civil Rights Law, which authorizes individuals to pursue damages for unauthorized use of their photographs.

“Written consent is explicitly required by the statute,” Singh pointed out. Furthermore, as long as Nolan’s photograph was available for viewing as part of Getty’s on-line catalogue, “the plaintiff’s assertion of a website’s accessibility sufficiently meets the required statutory element of use within New York State.”

Singh also noted that in deciding a motion to dismiss, he was assuming the truth of Nolan’s factual assertions. In order to win the damages she is claiming, Nolan would have to prove at trial all the requisite elements of the claim.

The Law Journal interviewed Nolan’s attorney, Erin Lloyd of Lloyd Patel in Manhattan, who said she first learned about the ad through a message posted on her Facebook page and “became instantly upset and apprehensive that her relatives, potential romantic partners, clients, as well as bosses and supervisors might have seen the advertisement.” According to Lloyd, Nolan was “humiliated and embarrassed” when forced to “confess to her bosses that her image had been used in an advertisement for HIV services, implying that she was infected with HIV.” The lawsuit seeks $450,000 in damages, and claims that Getty has a legal responsibility to get permission from models before exhibiting or licensing their photos.

For its part, Getty says that Nolan’s picture is one of millions of images collected from photographers and generally available on its website. If it were to be held liable in any case where a photographer did not obtain a written model release, its business plan would effectively fall apart. Getty’s law firm, Wolff and Sholder, argued in the motion to dismiss that “displaying and licensing a photograph is not the same as ‘advertising’ as contemplated in the Civil Rights Law,” according to the Law Journal’s report.

New York courts have held that the Civil Rights Law provisions do not apply to unauthorized use of a photograph to illustrate a news story, and have interpreted this judge-made exception to the statute rather broadly. As long as a photograph has some sort of thematic relationship to a newsworthy story, the person depicted in the photograph has no claim to damages. Thus, if Ms. Nolan’s photograph had been used in a news story about HIV-related discrimination, she would have no claim under this statute, even if the placement or caption might lead readers to conclude that she was HIV-positive. But an advertisement — even a public service advertisement — is different.

In this case, Nolan is seeking to hold Getty, the distributor of the image, responsible for its eventual use in a commercial context, even if, as Getty argued, it may have been unaware of that potential use when it licensed the photograph. Indeed, it seems possible, even likely, that an advertising agency retained by the Division of Human Rights to devise this advertisement licensed the photo from Getty’s on-line catalogue through an automated process in which no human being at Getty participated. The court may ultimately confront the question whether it is appropriate to apply the Civil Rights Law to anybody and everybody in a chain of transactions if a photograph ends up being used in an actionable commercial context when the original creator of the image – the photographer – failed to get a broadly-worded written release from the model. Requiring photographers to submit such releases with every photograph they submit to Getty may become a requirement of the business to avoid liability if a photograph is used commercially within New York.

The Colorado Wedding Cake Case

Posted on: December 8th, 2013 by Art Leonard No Comments

A Colorado Administrative Law Judge ruled on December 6, 2013, that a bakery had violated the state’s public accommodations law when its owner refused to sell a wedding cake to a gay male couple on July 19, 2012.

Colorado does not have same-sex marriage, and only enacted a civil union law open to same-sex couples early in 2013.  Back in 2012, however, Coloradans Charlie Craig and David Mullins planned to get married in Massachusetts and then have a big celebration event for family and friends back home.  Accompanied by Charlie’s mom, they went to Masterpiece Cakeshop, which sells wedding cakes, and sat down with the proprietor, Jack Phillips, at the “cake consulting table.”  According to the factual findings in the opinion by ALJ Robert N. Spencer, “They introduced themselves as ‘David’ and ‘Charlie’ and said that they wanted a wedding cake for ‘our wedding.'”  Phillips immediately said no, he doesn’t make wedding cakes for same-sex weddings.  “I’ll make you birthday cakes,” he said, “shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”  Without any further discussion, David and Charlie and Charlie’s mom got up and left, went to another bakery, and make their cake arrangements without incident.  The next day, Charlie’s mom called Phillips, who told her that he refused to make a wedding cake for David and Charlie because of his religious beliefs and because Colorado does not recognize same-sex marriages.

Although Charlie and David got their wedding cake, they felt humiliated by their experience with Phillips and decided to file a discrimination complaint to establish that his actions were unlawful.  The Civil Rights Commission sided with Charlie and David, ruling that Phillips violated their statutory rights.  When Phillips rejected that ruling, the case was referred for trial before an administrative judge.   As an administrative judge, Spencer does not have authority to declare statutes unconstitutional, but he does have authority to determine whether the application of a statute in a particular case violates the constitutional rights of the defendant.

Judge Spencer found, based on Phillips’ testimony, that he is a practicing Christian who believes that “the Bible is the inspired word of God, that its accounts are literally true, and that its commands are binding on him.”  He finds in the story of Adam and Eve and in a passage from Mark 10:6-9 (NIV) that only different-sex couples can marry.  “Phillips also believes,” wrote Spencer, “that the Bible commands him to avoid doing anything that would displease God, and not to encourage sin in any way.  Phillips believes that decorating cakes is a form of art and creative expression, and that he can honor God through his artistic talents.  Phillips believes that if he uses his artistic talents to participate in same-sex weddings by creating a wedding cake, he will be displeasing God and acting contrary to the teachings of the Bible.”

Phillips did not contest that his bakery is a public accommodation subject to the state’s anti-discrimination law, but he argued in defense that the law could not be applied in such a way as to violate his 1st Amendment rights of freedom of speech and free exercise of religion.  His bakery is incorporated but wholly owned by him, and he claims for his business the same 1st Amendment rights that he enjoys.  Judge Spencer pointed out that at least for now in the states comprising the federal 10th Circuit, which includes Colorado, family-owned closely-held corporations do enjoy 1st Amendment free exercise of religion rights (as a result of a 10th Circuit decision that the Supreme Court recently agreed to review), and the Supreme Court held several years ago in the notorious Citizens United case that corporations have 1st Amendment free speech rights.  Thus, Phillips argued, he should enjoy immunity from this discrimination charge on 1st Amendment grounds.  In effect, Phillips was arguing that the 1st Amendment protects businesses and individuals from having to comply with anti-discrimination laws if their personal beliefs based on religion would be violated by compliance with the law.

In addition, Phillips argued that he did not actually discriminate because of David and Charlie’s sexual orientation, and thus could not be found to have violated the statute.  He said that he would be happy to do business with them, so long as it didn’t involve a wedding cake for a same-sex wedding.  He testified he would also refuse to sell a wedding cake to a same-sex couple to celebrate a civil union, so his ground of objection is not really that Colorado does not recognize same-sex marriages, but rather that he feels that selling a cake for any celebration of a same-sex relationship would be state-compelled speech that violates his freedom of speech, as well as forcing him to act in conflict with his religious beliefs.

Judge Spencer first rejected Phillips’ argument that his refusal to sell the wedding cake was not sexual orientation discrimination.  “The salient feature distinguishing same-sex weddings from heterosexual ones is the seuxla orientation of its participants,” he wrote.  “Only same-sex couples engage in same-sex weddings.  Therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not ‘because of’ their sexual orientation.”  Drawing a telling analogy, he wrote, “If Respondents’ argument was correct, it would allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage,” but this kind of theory was refuted by the Supreme Court in 1983 in Bob Jones University v. United States, where the Court upheld the IRS action in revoking the university’s tax exempt status because it denied admission to interracial couples in violation of laws forbidding discrimination because of race.

On the free speech claim, Spencer rejected Phillips’ argument that “preparing a wedding case is necessarily a medium of expression amounting to protected ‘speech,’ or that compelling Respondents to treat same-sex and heterosexual couples equally is the equivalent of forcing Respondents to adhere to ‘an ideological point of view.'”  Spencer distinguished between wedding cakes and “saluting the flag, marching in a parade, or displaying a motto,” all forms of conduct that have been found to constitute protected speech.  Spencer noted that Phillips refused to do business with David and Charlie without any discussion about how the cake would be decorated or what might be written on it.  “For all Phillips knew,” wrote Spencer, “Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding.”  In a footnote, Phillips mentioned that the cake they had eventually obtained from another bakery had a “filling with rainbow colors,” but questioned whether that could be seen as some sort of endorsement of same-sex marriage by the baker.  Spencer characterized Phillips’ attempt to elevate making a wedding cake to the symbolic level of a compelled flag salute as an argument that “trivializes the right to free speech.”

Finally, Spencer rejected Phillips’ free exercise of religion argument.  He said that this case is not about the government trying to regulate what Phillips believes, but rather a regulation of commercial conduct.  “The types of conduct the United States Supreme Court has found to be beyond government control typically involve activities fundamental to the individual’s religious belief, that do not adversely affect the rights of others, and that are not outweighed by the state’s legitimate interests in promoting health, safety and general welfare,” Spencer commented, and cited a list of Supreme Court cases upholding neutral laws that incidentally regulate conduct, where the conduct involves some religious belief.  “Respondent’s refusal to provide a cake for Complainants’ same-sex wedding is distinctly the type of conduct that the Supreme Court has repeatedly found subject to legitimate regulation,” he asserted, mentioning that the Supreme Court itself had ruled that laws prohibiting sexual orientation discrimination by public accommodations have specifically been mentioned by the Supreme Court as legitimate.   The Supreme Court has ruled that a valid law that is neutral with respect to religion and generally applicable will be upheld if it is rationally related to a legitimate government interest.  The Colorado public accommodations law meets that test.

As an administrative judge, Spencer does not have authority to impose fines or penalties.  Upon finding that Masterpiece Cakeshop and Phillips had violated the law, his remedy was to issue a “cease and desist order” and take such other corrective action as is deemed appropriate by the Colorado Civil Rights Commission.  If Phillips appeals this ruling, it might get to a stage where he would incur financial liability, however.

The ACLU LGBT & AIDS Project and the ACLU Foundation of Colorado and attorneys from King & Greisen, LLC, represented the complainants at the hearing before ALJ Spencer.  Phillips enjoys legal support from Alliance Defending Freedom, a law firm that specializes in opposing gay rights under the guise of preserving the 1st Amendment rights of those who discriminate against gay people.   Given ADF’s participation, it is likely this ruling will be appealed.

The Colorado bakery case is one of only several contesting the applicability of public accommodation laws to businesses that want to avoid providing goods and services for same-sex ceremonies.  In Washington State, litigation proceeds against a florist shop, and in New Mexico, the state Supreme Court ruled earlier this year that a wedding photographer had violated the state’s public accommodations law by declining to provide photographic services for a same-sex commitment ceremony.  The Supreme Court has received a petition to review the New Mexico case.

Supreme Court Refuses to Review Some Pending LGBT-Related Cases: Virginia Sodomy Law; University Discharge of Homophobic Administrator

Posted on: October 9th, 2013 by Art Leonard No Comments

 

On October 7, the first day of its October 2013 Term, the Supreme Court announced that it had denied petitions for certiorari in two pending LGBT-related cases, MacDonald v. Moose from the 4th Circuit and Dixon v. University of Toledo from the 6th Circuit.

In MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013), cert. denied sub nom Moose v. MacDonald, No. 12-1490, 2013 WL 3211338, the 4th Circuit held that Virginia’s sodomy law was facially unconstitutional in light of the Supreme Court’s 2003 decision in Lawrence v. Texas, which had invalidated the Texas Homosexual Conduct Act.  Unlike the Texas statute, which only applied to same-sex conduct, the Virginia sodomy law broadly applies to all acts of anal or oral sex, regardless of the genders or ages of the participants or the location of the activity.  In this case, the state prosecuted and convicted William MacDonald for soliciting a young woman to engage in oral sex with him in a parked car.

The solicitation statute applies only to criminal conduct, and thus incorporated by reference the sodomy law.  MacDonald argued in defense that his conduct was protected under Lawrence, but the Virginia courts took the position that because the woman was only 17, and thus a minor, his conduct was not protected because Lawrence did not protect sexual conduct involving minors.  After his conviction was upheld by the Virginia Supreme Court, he filed a federal habeas corpus action challenging the constitutionality of his conviction.  The district court denied his petition, but a 4th Circuit panel voted 2-1 to reverse, finding that the broad Virginia sodomy law was facially unconstitutional under Lawrence.  Attorney General (and now Republican candidate for governor) Ken Cuccinelli petitioned for certiorari, arguing that Lawrence was an “as applied” decision, and that the Virginia sodomy law should be construed to apply only to conduct not protected under Lawrence, including the conduct of Mr. MacDonald.  His petition was denied without comment or recorded dissent.  It will be interesting to see whether the Virginia legislature, which has stubbornly refused to amend or repeal the sodomy law to bring it into compliance with Lawrence, will take any action now that this case is over.

In Dixon v. University of Toledo, 702 F.3d 269 (6th Cir. 2012), petition for rehearing en banc denied (2013), cert. denied, No. 12-1402, 2013 WL 2357630, the 6th Circuit held that the University did not violate the 1st Amendment free speech rights of Crystal Dixon, an administrator who was discharged after she published a letter to the editor in a community newspaper articulating views about homosexuality that the University administration considered to be unacceptable for a person in her position.  The district court and court of appeals rejected her 1st Amendment claim, having found that she was speaking as an employee of the public university, and thus her speech was not protected by the 1st Amendment and the University could discharge her if it found her statements to be inconsistent with its policies concerning sexual orientation.  Her petition was denied without comment or recorded dissent.  The decisions below seem consistent with the Court’s precedents on public employee speech under the 1st Amendment.   When an employee is speaking in her capacity as an employee, the public employer has a right to determine the content of her speech as representing the public employer, and to discharge the employee for disseminating a message contrary to the employer’s policies.