Civil rights versus civil rights

Most legal fights involving civil rights end up being pretty clear-cut for most people. The typical civil rights case is about the freedom of some individual to do something important to them -- like to get married, or express his opinions -- against some larger entity or group which wants to prevent it. Or it's about some individual being hurt by the actions of some larger organization, like a corporation dumping toxic waste, or using unfair hiring or firing practices. People fall quickly into party lines: liberals tend to fall on the side of the little guy, and conservatives on the side of the bigger organization. Being a dyed-in-the-(sustainably-harvested)-wool liberal myself, I'd be inclined to say one side of the argument usually ends up being motivated by greed or intolerance, which is what makes it clear-cut.

Recently there was an interesting dispute in Burlington, Vermont, interesting because it doesn't shake out that way. Perhaps because of being so used to most issues dividing up that easily, a lot of people have come down instantly on one side or the other, and in many cases, once they do, they're stuck there. But it's almost random which side of the issue any particular liberal-minded person is likely to land on; whichever side they sympathize more with will crystallize their allegiance, but had the story been written a different way, they could just as easily have come down on the other side.

The issue at hand is a freelance photographer who has been taking pictures in the public market on Church Street. On one side, there are a number of people (primarily women) who've felt like his actions are "creepy"; on the other, there's his interest in pursuing his photography hobby. Legally, his rights to do so are clear: they're on a public street and have no reasonable expectation of privacy, so he doesn't need to get a release to photograph them, and he's been fastidious about not photographing people inside shops or other private places, only in the street itself. However, the coalition of shops on that street are just as much within the bounds of legality to get a restraining order against him banning him from those shops.

Both sides seem to me to be classic viewpoints for a liberal to sympathize with. On one side, the women who don't want him taking pictures of them have a very reasonable objection. Sure, legally he's allowed to take pictures, but if they find it creepy, and if he persists in doing it month after month, that puts them in the uncomfortable position of wanting to avoid a major shopping center and thoroughfare to avoid him. It is reminiscent of -- not the same as, not at all, but it seems like a metaphor for -- the kind of things we hear women talk about in sexual harassment cases, where coworkers or bosses (for instance) stay within the bounds of the law while creating a "hostile environment" in order to force the woman to be the one to have to change their life decisions, sometimes with great inconvenience, to avoid the situation. If you come to the issue from that perspective, such as if you read an article that focuses even a little more on that side, or if you happen to have just been reading something else on that topic, or if that resonates with your personal experiences, you're more likely to side with the shops and say the restraining order was a good move. (The fellow in question complicates the question by being, by some accounts, prickly and confrontational, though it's possible he's just being defensive. And the genders certainly muddle things farther: if it was a woman taking the pictures, I bet none of this would ever have happened.)

But on the other side, we have a guy who's trying to practice an art and a hobby, and doing it in what he describes as both legal and respectful. He's not taking candid pictures, and he's being strict about staying to people in public places. There's a well-established tradition of photography as an art, and public places photography is one valid subject: there have been art shows focusing on that very topic. They can't stop him from carrying out this basic freedom of doing a protected activity in a public place, so instead, a conglomeration of business and financial interests is applying leverage, almost fiscal blackmail, by banning him from not just one business but more than sixty businesses, an entire downtown shopping area in his hometown, as a way to punish him for engaging in legal behavior that they find interferes with their profit margins. It's not a First Amendment case, but just like the other viewpoint sounded vaguely parallel to a sexual harassment case, his viewpoint sounds vaguely parallel to a First Amendment case, in that business interests that can't bring legal pressure against a legally protected act are trying other methods, strongarm tactics. If you read an article that focuses on how this man's been put to great hardship for doing a protected act of artistic self-expression, or you've recently been exposed to similar cases, or you happen to have a similar experience in your past, you're more likely to sympathize with him.

Ultimately the case boils down to a civil right on one side (freedom from creepy, stalker-like harassment, and the presumption that the woman who finds it creepy has a right to feel that way, even if the guy doing it insists his intentions are not what she imagines) versus a civil right on the other side (freedom of artistic activity and expression, arrayed against a profit motive on the part of a number of businesses using the law as if it were a loophole).

And in that is an interesting question because there's no obvious right answer. Probably the nearest thing would be some kind of mediation -- bring the guy and some of the women into a room and help them find common ground and compromise -- but that wouldn't exactly set a precedent on how public policy could handle this situation more generally, for when the next time it comes up and someone's not as willing to compromise. It's easy to ignore the question of public policy and imagine that, if these particular people in this particular situation can be resolved, there's no bigger problem. But really, there's a hole in public policy, in that it has no way to deal with this situation that isn't depending on random citizens to be reasonable. It just takes one stubborn person to force policy to be the deciding factor, but how can policy balance these rights? That's not an unanswerable question but it's far from trivial. What's disappointing, though, is that reaction to this story has mostly missed the subtle balancing act that any public policy maker would have to do, to ensure their decision is going to work not just today but in the future. It's a great chance to see how challenging that job really is, if you just stretch enough to see both sides.