I think that a larger conversation regarding photographers using persons as subjects in public spaces must occur. The methods by which photographers gain entrance into the private, personal spaces of strangers, and the ethical questions demanded by these interactions, are also important things to address in demanding care from those behind the camera. These demand the acknowledgement that photography/art/art-photography/the production and consumption of images be acknowledged as grounded in concrete social relations between producers and consumers, rather than existing within an a-historical, quasi-religious, mystified realm of sacred autonomy. It is both symbolic exchange and material production. Secondly, it should be acknowledged that with the inheritance of the conceits of modernism along with the inherent assumption that form, mannerism, and formalism are concerns in and of themselves, photography becomes tied irrevocably to the idea of the ultimate ontological superiority of the artifact—which inevitably results in the assumption that the means always justify the end. In the 18th Century, religious structures no longer tolerated elsewhere were concealed within a theory of aesthetics by the Earl of Shaftesbury, who was eventually followed by Kant. The idea of aura, with its presupposition of unchanging Soul, was carried from Kant to Greenberg to the contemporary formalist photography championed by John Szarkowski’s crafting of the modern canon of art photography (In the US). Claims of Soul are always claims of essence, which postulates reality (& the art object in this respect) as unchanging in its meaning and intentions. Voltaire and Hume essentially fought this type of dogmatism.
The Nussenzweig vs. diCorcia New York Supreme Court case sets a legal precedent, as we know. As the legal precedent provided essentially means that all images made for the purpose of art in public spaces are equivalent to the right to speak freely, responsibility, as you note, rests with the photographer. What I think is demanded by the photographer, which much of the history of photography very much plausibly contests, is the granting of trust to the image-maker and representation producer, by those it transposes into objects. The question is whether the seeking of this trust is for ends which are determined by work engaged in and challenged by critical consciousness rather than the unconscious contribution to a form of dogmatism.
Long before Walker and Dorothea Lange’s ennobling or idealization of the poor pastoral citizen as an object of aesthetic contemplation, artists such as Toulese-Lautrec, from an aristocratic background, produced images for a bourgeois culture which prized the aesthetic idealization and consumption of the image of the working and lower classes. With the idea of a privileged subjectivity, the assumption is most often that the end object is justifiable by virtue of its relationship to a privileged genius or auratic, transcendental mysticality of that which the artist creates.
Thirdly, with the specialization of photography, following the specialization of poetry (on a similar time line) social or communal function is essentially assumed to be determined by auratic exemption. It is remarkable that the lineage of a reaction to hyper-rationalization would induce such remarkable constraints. The implicit determination of the action of the specialist is the withdrawal from responsibility for everything not comprehended by his/her specialty. It is assumed that photographers, inheriting the specialization of poetry, are different from other people, and hence, the aesthetic activity merits the removal of oneself from other activities. It also leaves room, as in the days of Toulouse-Lautrec, for the aesthetic consumption of the image of the other, common people, but a withdrawal from responsibility to those people, other than through the production of art.
There is a lot of work to do in how photographers relate to the places and people that they relate themselves to through the lens. If it is an end in itself, and not part of a greater task of human responsibility, the landscape, its persons, and its places will be submitted to a second humiliation of being subjected to another use value, of another force which they cannot control.
Thank you for continuing to raise important questions.