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July 9th, 2014

Why a Corporation Got a Religious Exemption, But a Photographer Didn’t

After the Supreme Court issued its ruling in the Hobby Lobby case, granting a corporation an exemption to a federal law on the grounds that the law “burdens the exercise of religion” of the company’s owners, we wondered: Why did the Supreme Court grant a religions exemption to a corporation, but decline to give a hearing to a New Mexico wedding photographer who refused to photograph a same-sex wedding for religious reasons?

In 2006, Elane Photography of Albuquerque declined to photograph a same-sex wedding ceremony because of owner Elaine Huguenin’s religious objections. Elane Photography was found  in violation of New Mexico’s anti-discrimination law, which explicitly bars discrimination on the basis of sexual orientation. Elane Photography was ordered to pay more than $6,000 in attorneys fees and costs to Vanessa Willock, who filed the discrimination complaint.

After exhausting her appeals in New Mexico state courts, Huguenin tried to appeal her case to the US Supreme Court, which declined without explanation in April to hear her case. Two months later, on June 30, the Supreme Court ruled that Hobby Lobby was exempt from a requirement under the Affordable Healthcare Act to provide employee health insurance coverage for certain types of  contraceptives because the requirement “substantially burdened” the company owners’ exercise of religion.

Did Hobby Lobby simply make a better legal argument for a religious exemption than Elaine Huguenin did? Could some other wedding photographer now win an exemption from photographing same-sex weddings for religious reasons by arguing that if Hobby Lobby got a religious exemption, then it’s only fair that a small business owner should get one, too?

It turns out that the cases are quite different. Hobby Lobby, a federal case, would have been no help to Elaine Huguenin, who broke a state law. Photographers opposed to shooting same-sex weddings, but who are subject to anti-discrimination laws, can’t invoke the Hobby Lobby decision to make religious freedom arguments, at least not in cases involving state laws.

“The Hobby Lobby [decision] doesn’t apply to state laws,” says Andrew Koppelman, a law professor at Northwestern University who has analyzed the Elane Photography case. He also emphasizes that the Hobby Lobby decision didn’t address an issue of constitutional law, which would trump state law. “Hobby Lobby was an interpretation of [federal] statute and it only modifies other federal statutes. It doesn’t modify state statutes.”

The court reached the Hobby Lobby decision on the grounds of the Religious Freedom Restoration Act (RFRA). That law, passed in 1993, prohibits the federal government from taking any action that substantially burdens the exercise of religion–unless the action is the least restrictive means of serving a compelling government interest. The Supreme Court said there were less burdensome ways to provide the disputed insurance coverage to Hobby Lobby employees than to make Hobby Lobby provide it against the owners’ religious beliefs.

In the decision on the final Elane Photography v. Willock appeal, handed down last August, the New Mexico state supreme court upheld lower state court rulings against Elane Photography for discrimination. The court rejected Huguenin’s religious freedom and free speech arguments.

She had argued that under the New Mexico Religious Freedom Restoration Act (NMRFRA)–the state’s version of the federal law–her religious beliefs should be accommodated. But New Mexico’s high court ruled that the NMRFRA doesn’t apply to private disputes; a government entity has to be a party to the dispute, and that wasn’t the case in Elane Photography v. Willock.

Moreover, the court said, the wording of the NMRFRA bars state government agencies from restricting a person’s free exercise of religion; it doesn’t bar the New Mexico legislature from passing generally applicable laws, as long as they don’t directly discriminate against religion. For instance, a law that applies to everyone, but doesn’t interfere with the exercise of religion, is legal under New Mexico state law, even if some people have religious objections to the law.

Koppelman wrote in his analysis of the Elane Photography case, “After the loss in New Mexico…there was no hope of bringing the religious liberty claim to the Supreme Court. Huguenin lost her case under a [state] law that did not target religion, and the [US Supreme] Court has held that the Free Exercise clause does not create an exemption from neutral laws of general applicability.”

In other words, Huguenin couldn’t appeal to the US Supreme Court on the grounds that her constitutional rights of Free Exercise had been violated by the New Mexico anti-discrimination law; the state law passed muster according to an earlier Supreme Court ruling (Employment Div. v. Smith, 1990).

In response to that 1990 ruling, politicians of all stripes were outraged, so Congress passed the federal Religious Freedom Restoration Act [RFRA] to restore protections of individual religious freedom from infringement by other federal laws. But even if Hobby Lobby had successfully invoked the RFRA before New Mexico courts found Huguenin in violation of state anti-discrimination laws, the Hobby Lobby decision wouldn’t have helped Huguenin because the RFRA has no effect on state laws.

In addition to rejecting Huguenin’s religious freedom claims, the New Mexico  supreme court also rejected her free speech claims. The state supreme court said, “The United States Supreme Court has made it clear that the First Amendment permits [anti-discrimination] regulation by states,” and that the New Mexico anti-discrimination law didn’t deprive Huguenin of her rights to free speech.

Huguenin tried to appeal to the US Supreme Court on Free Speech grounds, not Free Exercise grounds, but the Supreme Court declined without explanation to hear her case. Koppelman asserted in his article that the court rightly rejected the case because the New Mexico anti-discrimination law is “not a serious burden on free speech.”

It’s worth pointing out that the Elane Photography v. Willock decision applies only in New Mexico. Wedding photographers in about 30 other US states can refuse to photograph same-sex weddings for whatever reason–religious or otherwise–without consequence. That’s because federal law doesn’t bar providers of goods and services from discriminating on the basis of sexual orientation, and those 30 or so states also have no laws barring such discrimination. New Mexico just happens to be one of the 20 or so states where discrimination on the basis of sexual orientation is now illegal.

Related:
US Supreme Court Declines New Mexico Wedding Photographer’s Discrimination Case
Photographer Who Refused to Shoot Same Sex Wedding Loses Another Appeal
NM Wedding Photogs Can’t Discriminate Against Same-Sex Couples, Court Confirms
Photographer Loses Bid to Refuse Same Sex Wedding Jobs (PDN subscription required)

May 21st, 2014

German Photographer Michael Schmidt Awarded $112,500 Prix Pictet

From "Lebensmittel," Michael Schmidt's series on food production and consumption.

From “Lebensmittel,” Michael Schmidt’s series on food production and consumption.

Michael Schmidt was awarded the fifth Prix Pictet, a photography prize worth $112,500, in a ceremony this evening at the Victoria and Albert Museum in London. The award is sponsored by Swiss wealth managers the Pictet Group.

Schmidt was recognized for his long-term project “Lebensmittel,” translated as “food stuff,” which he made between 2006 and 2010. Sir David King, the jury chair, called Schmidt’s project “an epic and hugely topical investigation into the ways in which we feed ourselves,” according to a press release issued by the Prix Pictet organization. The Prix Pictet honors photographers whose work examines critical social and environmental issues, and the theme for this iteration of the prize was “Consumption.”

The shortlisted photographers included Adam Bartos (United States), Motoyuki Daifu (Japan), Rineke Dijkstra (The Netherlands), Hong Hao (China), Mishka Henner (Belgium), Juan Fernando Herrán (Colombia), Boris Mikhailov (Ukraine), Abraham Oghobase (Nigeria), Michael Schmidt (Germany), Allan Sekula (United States) and Laurie Simmons (United States).

Kofi Annan, the former UN secretary-general and honorary president of Prix Pictet, praised the shortlisted photographers for their “powerful images that ought to persuade governments, businesses—and each of us as individual consumers—of the need for a fundamental rethink of the principles on which present-day affluence is founded. The issue of unsustainable consumption, and in particular food and nutrition security, is not simply at the forefront of the global political stage, it is now firmly on the personal agenda of each and every one of us.”

Previous winners include Benoît Aquin, Nadav Kander, Mitch Epstein and Luc Delahaye.

The jury for the fifth Prix Pictet included: Sir King, chairman, UK Foreign Secretary’s Special Representative for Climate Change (SRCC); Peter Aspden, arts writer, Financial Times; Luc Delahaye, photographer; Fumio Nanjo, director, Mori Art Museum; Loa Haagen Pictet, art consultant & curator; Martin Barnes, senior curator of photographs, Victoria and Albert Museum; Wang Shu, architect; Elisabeth Sussman, curator of photography, Whitney Museum of American Art.

An exhibition of the work of the shortlisted photographers opens tomorrow at the Victoria and Albert Museum, where it will show through June 14, 2014.

January 23rd, 2014

HuffPost Ignoring PhotoJ Credits For Images of Kiev Clashes

Yesterday Huffington Post UK published “29 Incredible Pictures Of Kiev Transformed Into A Warzone,” but didn’t bother to caption or credit the images to the photojournalists who are risking personal harm to create them.

(Oddly, another gallery published by the Huffington Post empire using some of the same images did include proper credits and captions.)

Several news outlets are carrying wire images of clashes in Kiev between protestors and police. Among the photographers whose images are featuring prominently on the websites and front pages of major news media are Sergei Grits and Efrem Lukatsky, who are covering the protests for AP; Valentyn Ogirenko, Vasily Fedosenko and Gleb Garanich for Reuters; and Sergei Supinsky, Anatolii Boiko, Anatoliy Stepanov and Vasily Maximov for AFP/Getty.

Show some respect, HuffPost UK, while you count your clicks.

December 13th, 2013

White House Press Secretary to Photographers: We Respect You, But We Don’t Need You

In an exchange yesterday with reporters over why press pool photographers were kept away from President Barack Obama on his trip to Nelson Mandela’s funeral last week, White House Press Secretary Jay Carney ducked, dodged–and said times have changed.

“This is part of a bigger transformation that’s happening out there that’s driven by the ability of everyone to post anything on the Internet free of charge so that you don’t have to buy that newspaper or subscribe to that wire service to see that photograph.”

In other words, the White House doesn’t need press photographers anymore, and neither does the public, now that the White House can distribute its own pictures of the president online.

The exchange began when a reporter asked why White House photographer Pete Souza was allowed on the speaker’s platform when President Obama spoke at  Mandela’s funeral, but press pool photographers were not allowed. Reporters also pressed Carney hard on why press pool photographers were not permitted to photograph the President and First Lady, along with former President George Bush and his wife, Laura Bush, on the flights to and from the funeral in South Africa.

The White House released its own photos, shot by Souza, from the flight.

Carney took the questions with a preamble of praise to photographers. “I have huge admiration for that service to the free flow of information and the unbelievable bravery that cameramen and photographers display, especially overseas in hard areas, in dangerous areas, like Afghanistan, like Syria and elsewhere,” he said.

He added later on after reporters kept pressing the issue, “From the President on down–and I mean that–there is absolute agreement that there’s no substitute for a free and independent press reporting on a presidency or the White House, on Congress, on the government. It’s essential. Essential. And that includes photography.”

The White House got as much access as it could for press pool photographers on the speaker’s platform at the funeral, Carney said. When pressed about the lack of access on the flight, which reporters pointed out was 20 hours each way, Carney said, “For a lot of those hours, the President, the former President, the First Lady and the former First Lady were asleep. So we probably weren’t going to bring in a still pool for that. Or they were having dinner or something like that. But look, I think I just made clear that I want to work on this issue.”

How committed he is to “work on this issue” is unclear. Reporters pressed repeatedly for details, and Carney offered none, other than to say his office has met with representatives of the White House Correspondents. And he added, “I can promise you that the outcome of that will not be complete satisfaction” because of inherent tensions between all administrations and the press over access.

Last month, Carney rejected a request from 38 news organization for a meeting to discuss their complaint about a lack of access for press pool photographers to the Oval Office. In doing so, he told them the public interest was served well enough by the stream of photos the White House was releasing on social media.

The media has dismissed those photos, by Souza and other White House photographers, as “visual press releases.” In an op-ed piece published in The New York Times yesterday, Associated Press Director of Photography Santiago Lyon labeled the White House handout photos as “propaganda.”

Related:
AP Photo Chief Appeals to Public About White House Access. Will It Help?
Media Protests White House Limits on Photographers

December 12th, 2013

AP Photo Chief Appeals to Public About White House Access. Will It Help?

Official White House Photo by Pete Souza, from memorial for Nelson Mandela. Handouts like these are "visual press releases," argues AP's Santiago Lyon.

Official White House Photo by Pete Souza, from memorial for Nelson Mandela. Handouts like these are visual press releases, argues AP’s Santiago Lyon.

The White House has waved off a complaint from media organizations about photographers’ lack of access to the Oval Office, and now Associated Press director of photography Santiago Lyon has taken the complaint to the op-ed pages of The New York Times.

The question is, will the AP’s protest stir the kind of public outrage that makes the White House relent?

Last month, 38 media organizations sent a joint letter of protest to the Obama administration, charging that it was denying them the right to photograph and videotape the President while he was performing official duties in his office. According to the letter, the administration is keeping photographers out by designating the president’s work meetings as private. But the White House has been posting its own photos of those meetings on social media.

In other words, the White House is doing an end run around the press corps. The aggrieved media organizations criticized the administration for its lack of transparency, and dismissed the White House photos as “visual press releases.” The news organizations asked for a meeting with White House Press Secretary Jay Carney to discuss removing the restrictions.

Through one of his deputies, Carney’s response boiled down to: We’re keeping the public plenty informed, so take a hike.

With Lyon’s Op-ed piece to the Times, AP is hoping to get a more sympathetic hearing in the court of public opinion.

Carney “missed the point entirely” with his dismissive response to the protest letter, Lyon writes. From there, he reiterates the point that White House photos are visual press releases, not journalism. The official photos “propagate an idealized portrayal of events on Pennsylvania Avenue,” he writes.

After arguing the merits of images by independent news photographers, Lyon concludes: “Until the White House revisits its draconian restrictions on photojournalists’ access to the president, information-savvy citizens, too, would be wise to treat those handout photos for what they are: propaganda.”

And he’s exactly right. But it’s hard to imagine a public clamor on AP’s behalf for two reasons. First, when it comes to Oval Office photo ops, citizens might have a hard time distinguishing between photos from the pool and White House handouts. Second, the public doesn’t hold the press in high esteem these days. To many non-journalists, Lyon’s complaint might only come across as whining.

What citizens are really interested in are images of the President’s unscripted moments, as Lyon suggests in his op-ed piece. He mentions some memorable photos of past presidents. Most happened outside the Oval Office: Nixon flashing a victory sign as he was boarding a helicopter after his resignation, Ronald Reagan waving from a hospital window after his cancer surgery, George W. Bush’s look of astonishment when he first heard of the 9/11 attacks.

What news organizations need to do, besides editorialize in The New York Times, is redouble their efforts to show the public what the White House will never release: fresh, unscripted, uncensored images of the President. The pictures from Nelson Mandela’s funeral of Obama’s handshake with Raul Castro and the selfie incident were certainly a good start.

November 18th, 2013

Video Pick: Shaul Schwarz’s Two-Year Journey into Narco Culture

Shaul Schwarz’s documentary on drug cartel violence in northern Mexico opens in theaters in New York and Miami on November 22, and will be shown in other cities starting December 6.  Schwarz, a photographer and cinematographer represented by Reportage by Getty Images, spent two years making the film. You can see a trailer for the film, “Narco Cultura” here on the website www.narcoculture.com and on YouTube.

“Narco Cultura” looks at the toll of drug violence from several perspectives. For example, he visits Juarez, Mexico, to see what may be the busiest crime scene investigation unit in the world. He also explores the scene surrounding narcocorrido music, and follows one musician, Edgar Quintero, leader of a band that plays for fans both north and south of the US/Mexico border.  And it shows those who are left to grieve after acts of violence and retaliation.

Schwarz recently talked to PDN about how he got the film into festivals, for our article, “5 Steps to Promoting and Distributing Your Film.

The movie was shown at the Sundance Film Festival earlier this year. An interview with Schwarz about the making of the film can be viewed on the Sundance Institute website.

October 29th, 2013

Gilles Peress’s Post-Sandy Book Tests “Generosity-Based” Publishing

© Concord Free Press/photo by Gilles Peress/Magnum

© Concord Free Press/photo by Gilles Peress/Magnum

Starting tomorrow, the day after the anniversary of when Hurricane Sandy made landfall on the East Coast of the U.S., the publishing house Concord Free Press is giving away copies of The Rockaways, a new book which features Gilles Peress’s images of the storm’s devastation in one of the hardest hit areas of New York City and essays by high school students and other residents of the neighborhood. All 4,000 numbered copies of the book are free, but in exchange, everyone who receives a copy is asked to make a donation to a charity of their choosing or to a person in need, and to pass along the book so the giving continues. The Rockaways is the eighth book published by Concord Free Press, which co-founder Stona Fitch calls an experiment in “generosity-based publishing.”

“Like everybody else, I was really moved by the distress of many of the people affected, especially the poorest part of the population in the Rockaways,” says Peress. “I think of all of us felt on some level: How can we help?” Hamilton Fish, former publisher of The Nation and a member of the Concord Free Press advisory board, edited The Rockaways and approached  Peress about donating images to the effort. “It was a no-brainer. I said yes after the first sentence,” Peress says. He adds, “It’s up to you and your conscience and your wallet to donate to what you think is a worthwhile cause–hopefully dealing with the Rockaways and hopefully dealing with income disparity.”

“We’re about linking art and activism,” Fitch says. Concord Free Press’s other seven books have each raised $50,000 to $60,000 in charitable donations. Designers, writers and publicists donate their time; Kodak provided digital printing for The Rockaways and for Concord Free Press’s previous book, Round Mountain, a collection of short stories set in a small town in Vermont, which was released after Hurricane Irene caused massing flooding in the state. The Rockaways is the publisher’s first photo book. Fitch calls Peress’s images of the ravaged working-class neighborhood  “powerful.” He says, “When you’re given something so beautiful and powerful for free, it has a great effect for inspiring generosity.” By stirring donations, Fitch says, the book can “help address the problem that was being photographed.” He acknowledges that people might be reluctant to pass The Rockaways along, “because Gilles’s book is so beautiful.”
(more…)

September 5th, 2013

Facebook Makes Alarming Changes to Terms, ASMP Breaks Down the Changes

Facebook has altered their terms of service to make it possible for companies that pay the social media network to utilize Facebook users’ content and likeness without compensation or permission. The changes are sure to alienate Facebook’s users in the creative community, who make a living from licensing their work and content.

Among the changes is this gem:

“You give us permission to use your name, and profile picture, content, and information in connection with commercial, sponsored, or related that content (such as a brand you like) served or enhanced by us. This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you. If you have selected a specific audience for your content or information, we will respect your choice when we use it.”

ASMP created a handy Q&A about the new terms of use that helps break down the changes and what they mean for photographers.

This comes on the heels of the ASMP-led criticism of Instagram that was recently issued.

We have to wonder, at what point will a social network take the step to actually compensate the users that make it tick and protect them from unauthorized exploitation and surveillance? Seems to us like a network that figured out how to do that would find a community very quickly.

Related: Photography Trade Organizations Take Aim at Instagram Terms
AFP, Washington Post Violated Daniel Morel’s Copyrights, Judge Rules
Morel Case Highlights Copyright Risks of Social Networks

August 27th, 2013

Landscape Photographer Edward Burtynsky Explores Another Endangered Resource: Water

Burtynsky-Watermark-Water
Edward Burtynsky, the photographer renowned for his monumental photographs that explore how human activity alters the landscape, has spent the last five years investigating our exploitation of a precious natural resource: Water. Spanning ten countries, “Water” may be his most ambitious project to date. “Over five years, I have explored water in various aspects; distress, control, agriculture, aquaculture, waterfront and source,” Burtynsky explains on the project’s website. Next month, Steidl will publish 114 of the images in a new book, Burtynsky –Water, and exhibitions will open at galleries in North America, Europe and the UK. A documentary about the project, Watermark, co-directed by Jennifer Baichwal, who directed Manufactured Landscapes, an earlier film about Burtynsky’s work, will be shown at the TIFF film festival in Toronto on September 6.

The film was shot in 5K high-definition video, to capture the details in his aerial views and landscapes: a ritual swim by worshippers in India’s Ganges River, an enormous dam in China, leather tanneries pumping water in Bangladesh, a suburban development sprawling across former desert in Arizona, dryland farming in Spain.

Even when seen on a computer screen, the trailer looks pretty great:

WATERMARK – Trailer from Flowers Gallery on Vimeo.

(You can also see the trailer on Vimeo.)

“Water” opens at Nicholas Metiver Gallery in Toronto on September 5. Other shows of Burtynsky’s work, including images from his project on water, open at Howard Greenberg Gallery and Bryce Wolkowitz Gallery in New York City on September 19. You can view more of the images and see a full list of exhibitions on Burtynsky’s website here.

Related articles

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August 23rd, 2013

Freelance Photog’s Tale of Abduction By Syrian Rebels Serves As Warning

Today The New York Times published a story about a freelance photographer’s abduction and captivity in Syria. The tale should serve as a warning for photojournalists—particularly those who are inexperienced—who might be inclined to freelance in a war zone.

Matthew Schrier was abducted in Aleppo on December 31, 2012, he told the Times, taken out of a taxi by Syrian rebels with ties to Al Qaeda and passed among rebel groups for seven months. According to the article by CJ Chivers, Schrier believes the driver of the taxi he was riding in out of Aleppo “probably” participated in his abduction.

“His experience reflects the sharply deteriorated climate for foreigners and moderate Syrians in areas subject to the whims of armed religious groups whose members roam roads, staff checkpoints and occupy a constellation of guerrilla bases,” Chivers writes.

Schrier’s captives accused him of working for the CIA, tortured and interrogated him, and assumed his identity online and communicated with his friends and family. In an account of one of the beatings Schrier suffered, Chivers writes, a captor asked Schrier, “Have you heard of Guantánamo Bay?”

When he escaped he left behind another American who couldn’t fit through the small basement window Schrier had slipped out of.

“Mr. Schrier’s detention is one of more than 15 cases of Westerners, mostly journalists, being abducted or disappearing in Syria this year,” Chivers writes. “The victims range from seasoned correspondents to new freelancers, like Mr. Schrier, who was covering his first war.”

Read the full story: http://nyti.ms/1c0IJfh