[blindlaw] Do blind people have a right to visual memory?

Sai legal at s.ai
Wed Jan 24 18:04:50 UTC 2018


I think you took me to mean something a bit different than I intended.

Yes, there are things that just aren't going to change, and we have to
deal with that, as well as have legal protections as fallbacks. For
instance, as you mentioned, there's absolute right of way for cane
users. I've certainly had my share of navigation issues (like I said)
where I probably could've done better had I been in a better state and
with better skills, but I wasn't, so had to rely on that. (Thankfully
I've never been run into by anything worse than a clueless pedestrian,
but I sure as hell would want the other person to pay if that
happened, even if I was in the bike lane or whatever.)

However, my point was about situations where there *are* potential
remedies available, but they are legally restricted by default, like
recording.

I'm not proposing that the government (or third parties) would have
the burden of paying for such things; I think ADA-style accommodations
are a pretty good balance.

Rather, I want the government to not punish me (or threaten to) for
recording whenever and wherever I want. A sighted person in the same
situation would have had the opportunity to see and remember what they
saw. I can mimic that ability using a pair of sunglasses with a hidden
camera in them. (I actually have a pair.)

But even when I'm totally taking on that burden of accommodating
myself, right now, I might be prohibited from doing so.


Most courts, for instance, ban all recording. But suppose I'm arguing
at a hearing, or a jury trial. A sighted lawyer in my position would
be able to remember how the judge or jury reacted emotionally to
various things, and use that knowledge when preparing for the next
hearing. I would not be able to do that... unless I can record it.

So on what basis could I argue for the right to record it?

Or, to put the converse again: would it be legal for the court to say
everyone entering the court has to wear a blindfold? Would it be legal
for a judge to say that opposing counsel, in my particular case, has
to wear a blindfold at all times during my case?

I think the answer to both of those is clearly 'no'. So why is it
legal for the court to prohibit me from recording, since that's the
next best thing to vision that I have available to me?


This question doesn't really get at accommodations in general, i.e.
affirmative steps that others have to take. Those are of course the
much more common scenario.

This only gets at a challenge to prohibitions on what you could do
now, but would be punished for doing.

The closest "normal" thing I can think of that's like this question is
jaywalking. Presumably cane users have a right to jaywalk, even though
that's otherwise a crime, without fear of any government punishment
for doing so.

Sincerely,
Sai


On Wed, Jan 24, 2018 at 3:23 AM, Daniel McBride via BlindLaw
<blindlaw at nfbnet.org> wrote:
> Sai:
>
> With all due respect, I am not really sure what your question entails and,
> given my best impression of your question, I am believing I might have more
> legitimate issues to worry about.
>
> There are those of us who are blind. There are those who are not. I
> certainly understand the concepts underlying the ADA and a disabled persons
> right to a fair, and equal, chance at life and what it has to offer.
> However, within this context, at some point I have to face the fact that I
> am blind and live with its limitations.
>
> Let's say I seek, for example, my constitutional right (?) to be a starting
> pitcher in major league baseball so I get the chance to experience what
> sighted persons experience, or to be a starting quarterback in the NFL so I
> can experience what sighted persons get to experience. Or, I can simply
> accept the fact that I am blind and realize that a blind person will never
> pitch in Major League Baseball nor be a starting quarterback in the NFL.
>
> I'm sure I navigate places daily that I am unaware are potentially
> hazardous. In the painted bicycle lane example, if a sighted bicyclist sees
> a blind person on the shared sidewalk with his/her cane, or guide dog and
> the cyclist is unwilling to yield to the blind person, then I am more
> concerned about the cyclists' ability to satisfy my judgment against him/her
> for any injuries they might cause me.
>
> If I understand your question correctly, I believe it falls into the
> category of being careful what we ask for because we just might get it.
>
> And my comment is intended respectfully. Just my two cents worth. And I
> might be misunderstanding the intent of your question as well.
>
> Daniel McBride
> Fort Worth
>
> -----Original Message-----
> From: BlindLaw [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of Sai via
> BlindLaw
> Sent: Tuesday, January 23, 2018 2:01 PM
> To: Blind Law Mailing List
> Cc: Sai
> Subject: [blindlaw] Do blind people have a right to visual memory?
>
> Consider any of various situations where it is illegal to secretly record
> video. Customs, courts, etc etc.
>
> A sighted person going through those situations would have a visual memory
> of what they saw. A blind person would not; they wouldn't have access to the
> same information that the sighted person does (albeit limited by memory).
>
> So, could one (winnably) argue that the blind person has a Constitutional
> *right* to covert video recording, i.e. the right to see and remember what
> they saw (albeit through the intermediary of a recording), at least for
> personal or testimonial use?
>
>
> I started thinking about this recently during O&M training. I recorded the
> training session out of curiosity to see what it was like.
>
> I didn't learn until after recording that training session that a street I
> walk very frequently has a painted-on bike lane on part of the sidewalk.
>
> I had absolutely no idea it was there, despite having walked that exact path
> for months and easily recognizing various parts of it by cane. The
> painted-on bike lane, and the division between it and the pedestrian part of
> the sidewalk, just have almost zero perceptible tactile cues, let alone
> something to indicate "don't walk here".
>
> As a result, in that video of my training session, I was blithely walking
> along the curb side of the sidewalk, smack in the middle of a bike lane. It
> came as quite a shock to me when I reviewed the video.
>
> I've had multiple other experiences where visual memory was critical, like
> where TSA violated my rights and I needed evidence of who did what. Had I
> not been recording, I wouldn't have that evidence.
>
>
> So it makes me think: what about establishing a blind person's right to
> perceive, and recall, the same visual information that a sighted person
> would have access to in the same situation? (Or likewise for d/Deaf and
> audio, or psychological issues and memory in general.)
>
> Has anyone ever tried this?
>
> Sincerely,
> Sai
>
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