If you’ve ever walked around New York City, you’re aware that there are some interesting, and at times, strange, things going on. There’s no better way to experience The Big Apple than by walking among the locals, including topless women posing for a photographer. Said experience is courtesy of photographer Allen Henson, who has made NYC the backdrop for a series of women, sans tops. Tip: If you’d like to find Henson on the job, seek out NY landmarks. He’s photographed in Grand Central Terminal, Central Park, and in front of the Flatiron Building. And then there are the now famous photos on the observation deck of The Empire State Building (ESB), which have landed Henson in a lawsuit.
In short, Henson and 22-year-old Shelby Carter (pictured above) purchased tickets to the 86th floor of one of NYC’s most famous landmarks on August 9, 2013. There, among the tourists, Carter removed her top and Henson starting shooting with one of the city’s most spectacular views in the background. The problem was that ESB officials felt that the provocative photos damaged its family oriented environment and thus brought suit against Henson seeking over a million dollars and an injunction preventing Henson from ever stepping foot in the Empire State Building again.
Before we get to the heart of the suit, let’s discuss what inspired Henson’s interest in taking photos of half-dressed women (and no, it’s not the obvious). In 1986 seven women were charged with violating New York Penal Law § 245.01 by “baring that portion of the breast which is below the top of the areola” while picnicking in a public park in Rochester, New York. Two of the women appealed the charges claiming the law was discriminatory because it only applied to women. New York’s highest court agreed in 1992, finding that the law did not apply to the situation at hand. Essentially, the court said the women of New York were free to be topless while in public.
The issue of women roaming the public spaces of NY while being topless might sound familiar because it has recently been tested again. Jill Coccaro was arrested in 2005 for walking around without her shirt on. She sued the city for violating the ruling from the 1992 case and the city eventually paid her $29,000 to settle the suit. Similarly, Holly Van Voast was arrested after appearing topless on the Staten Island Ferry and in Grand Central Terminal, among other places. Eventually, she, too, was arrested. Even though the charges were dismissed, she filed suit. The New York City Police Department subsequently issued a statement to officers that women shouldn’t be cited or arrested for being topless in public.
So, for those of you brave enough, feel free to roam without being hindered by a shirt. Now, back to the suit.
Henson, interested in the fight to be topless and wanting to test the waters, started taking topless photos of women in public places as part of his “boobs around town” project. As mentioned above, Henson’s quest led him to the observation deck of the Empire State Building. And a suit followed, which claimed that Henson needed permission to take the photos, since they were for a commercial purpose. It is also alleged that the photographer and his model trespassed onto Empire State Building property and exceeded the permission given to someone who buys a ticket by “engaging in unauthorized, inappropriate, and objectionable activities” and that Henson should be banned from the ESB because of the intentional and inappropriate conduct in a family setting and in full view of said families.
Whether the shoot was commercial or not will likely be a large point of contention in the suit. Henson claims it was not, saying “I am a professional photographer, but that doesn’t mean that every time I touch a device with a camera on it, I must be conducting a photo shoot.” By his account, he simply wanted to take some personal photos with a breathtaking view, just like any other tourist, and thus he didn’t need permission. But is this a believable argument? We’re not so sure. As previously discussed, Henson is all over town taking photos of models who are topless. And they all just so happen to be in, around, or on top of NYC landmarks. So there is clearly something more here than just taking a typical photo from the ESB’s vantage point.
Worth mentioning is the fact that the Empire State Building is privately owned. The reason this is important is because the landmark 1992 case that established a woman’s right to be topless, and the case that essentially inspired Henson’s topless project, dealt with the freedom to be without a top in public places. A private entity, like the ESB, isn’t necessarily bound by the decision granting women the right to bare their breasts.
Henson has done more than just claim he wasn’t taking commercial photos. He’s also recently filed an answer and counterclaim to the suit brought against him. In it, Henson seeks dismissal of all claims, judgment in his favor, a $5 million judgment on his counterclaim, and attorney’s fess and other expenses. Henson responds to the contention that his actions tarnished the landmark’s reputation as a safe and family-friendly attraction by pointing out that the “approximately 30 suicide attempts” from the observation deck are actually responsible for damaging the tourist attraction’s reputation. He also notes that his ticket did not clearly state what would be “objectionable” behavior and denies all the material claims alleged in the suit.
The really interesting part of Henson’s move is his counterclaim. He asserts that the suit against him and the false and defamatory statements have cast him in a false light “as a person who has violated the terms of a license, created a public disturbance, and has violated the law.” New York does not currently recognize the tort of false light, so we’ll only discuss defamation. A defamation claim in New York requires that there be a false statement, published to a third party, with fault amounting to at least negligence, that caused harm.
As we see it, there are two problems here. The first is that if the statements made in the ESB’s suit are substantially true, that’s an absolute defense to a defamation claim. We know the details are true: Henson and a model did buy tickets in 2013 to the observation deck, the model was topless, and Henson took photos. The points worth arguing, that the photos were commercial and that the conduct was “objectionable”, will be argued in court. But our guess is that the odds are against Henson. What’s more, we aren’t exactly sure what the harm is. The “boobs around town” project is provocative and is seeking to push some limits. Getting into a little trouble along the way just seems like part of the process, no? Henson has even said that he will be taking his next project to Texas to “test some more conservative minds”. So, he’s clearly aiming for reactions, and perhaps even a little disturbance.
Both parties seem to be overzealous in hoping for more than a million dollars. The Empire State Building is surely still brimming with tourists and Henson is likely as in-demand as he ever was, if not more so. Nonetheless, it’ll be interesting to see how the case ends up.