NY Appellate Court Upholds Photographer's Rights Against Free Exercise Claim

Yesterday, a New York appellate court affirmed the dismissal of a free exercise claim in an unusual suit under New York's privacy law. In Nussenzweig v diCorcia, (NY App. Div., March 20, 2007), Erno Nussenzweig, a Hasidic Jew, sued Philip-Lorca DiCorcia, a professional photographer who took a series of photographs of persons passing through Times Square, including Nussenzweig. Then, without consent, DiCorcia used the photos in a gallery exhibition, and in a catalogue that was published to go along with the exhibit. Nussenzweig's religious beliefs -- in particular his interpretation of the second commandment against making graven images-- are violated by the use of the photo. (See prior posting.) In the appellate court, three of the five judges dismissed the claim on statute of limitations grounds. However, in a concurring opinion, Justices Tom and Malone also agreed with the lower court that the privacy act was not violated and that no free exercise claim was established because the photographer's conduct did not amount to state action. It rejected Nussenzweig's claim that the issuance of the trial court's decision protecting the photographer's free expression rights created the necessary state action.