Your right to take photographs is in v. serious danger

[cyrus]

As some of you know I am in the midst of investigating bringing a suit against a public transportation system in my area which prohibits taking photographs without a permit.

I don't want to get into details (and thus help the "other side") BUT you should all know that everything we've all been assuming about photography being a form of expression protected by the First Amendment to the United States constitution - is potentially dead if this legal trend is taken up (and there are definite signs that it is.)

Again, I don't want to get into details - but this is very, very bad. Do not take your right to engage in photography for granted for a single minute. No joke. Most of what you've been hearing about "public places" etc. would be pretty much irrelevant under this legal view.

This has left my lawyer and I scratching our heads and worried about bringing our case because it could help strengthen this very, very bad trend if our case is decided on that basis. (set a terrible precedent)

Sorry for sounding so weird about this but I don't want to give it away to the other side. (For you lawyers out there, you'll know what I mean when I say that the case has not been noticed as much because Westlaw/Lexis haven't really written an accurate/sufficiently detailed headnote on its actual holding - but if you read the case you'll see what I mean - and no I'm not going to tell you which case.) I'm only stating this to vent because I feel totally frustrated and shocked at what's happening. My lawyer isn't really "into" photography so he doesn't quite grasp the implications. I wish there was a legal mind out there who is into photography and whom I could trust not to "give away" the issue.

[Mark Stahlke]

OK, I'll bite.

Whatever this "very, very bad" thing is, the only way to kill it is to drag it into the light. Ever notice how the cockroaches scurry away when you turn on the light?

[tim atherton]

Cyrus,

if this really is so, then you should probably see about cooperating with the likes of Bert Krages who has been involve din this area of law,
http://www.krages.com/bpkphoto.htm

(he has written The Legal Handbook for Photographers)

and also people like the lawyers for the ASMP (and possibly NPPA) etc should probably be contacted?

and also possibly Caroline Wright (although I don't know much of this particular area of law she has been involved in)

http://www.photoattorney.com/

[Charles Carstensen]

Cyrus, I can relate to your frustration. You really do need an intellectual property rights specialist lawyer. For all we know you may have stumbled into an area that is truly precident setting. I would refer you to the Editorial Photographers web site, and the ASMP. In any event those two organizations will be able to help you. Do not go it alone with an unskilled IP lawyer.

[cyrus]

OK here's the deal. I figure this isn't really unknown. I jus found a couple of government memos that have barred photography by citing this case.

First some background: the First Amendment of the US constitution protects "speech". The word "Speech" has been interpretted to mean any sort of expression generally, not just the spoken word. In other words, films, paintings, drawings, signs, banners, armbands, etc are all protected forms of "speech" because they're forms of expression. Even conduct which is intended to express something can also be protected - subject to some limitations. So, for example, the burning of the flag is legal because it is a form of expressive conduct (you're expressing your opposition to something when you burn a flag at an antiwar demonstration ) But there's no protection provided for just plain conduct. You have no First Amendment right to go out and chop a tree down, for example, because there's no expression or communucation of ideas involved.

However, there was federal case called D'Amario v. Providence Civic Center Authority. The case arose because a commercial photographer wanted to get access to a rock concert at a city convention center, when the rock group's contract with the convention center had a "no cameras" provision. The photographer was prevented from getting in, and so he sued, claiming that his First Amendment rights had been violated. The court ruled against him and said that he didn't have a right to get in.

This case is often mentioned when the issue of "right to access" comes up. Most of the books on photographers rights deal with this case only in that context: Does a news photographer have a "right to access" government facilities, yada yada yada.

But if you read the case, you'll see something else - something very bad.

Apart from the whole issue of "right to access", the judge makes a distinction between the TAKING of a photograph and the DISPLAY/SALE of photographs. Displaying photographs are forms of expression and therefore protected by the First Amendment. However, according to the judge, the TAKING of a photograph is simply "conduct" rather than "expression" - and as such it is NOT protected by the constitution. The commercial photographer who wanted to TAKE photos of the rock concert therefore didn;t have a constitutional right to do so.

Pure conduct can be prohibited without any First Amendment issues coming up - EVEN IN A PUBLIC PLACE. In that case, the rock concert was in a govt buidling but if Taking photos is treated as pure conduct, then it can be prohibited even in public places not just gov't buildings. If tomorrow your city bans the taking of photos in all public places, you can't complain about your constitutional rights.

In short you have a constitutional right to display or sell a photo - but not a constitutional right to take photos. And several other cases have followed this one and there are apparently government agencies prohibiting photoraphy based on this case. This is a trend which I think will increase. Making a distiction btween TAKING photos and DISPLAYING photos has create a "loophole" which will only get bigger.

I find this shocking. Until now I had not realize that a case existed that made this distinction. The logic is really ridiculous (like saying reading is protected by the constitution, but not writing!)

Sure, every law student knows the O'Brien case, when a fellow burned his draft card as a way of expressing his displeasure with the Vietnam war. The Supreme Court ruled that the burning of the draft card was conduct which was not protected by the first amendment. Great. Fine. Make burning draft cards illegal.

But the distinction is this: O'Brien could have expressed his displeasure with the Vietnam war using other means - chanting, dancing, waving signs, etc.

A photographer, however, cannot "express" himself by displaying his photos - unless he can first take photos. If he's not free to take photos, then he can't be free to express himself. That's why the judge in the D'Amario case is wrong, IMHO. However, the decision was upheld on appeal, and other courts have followed it (there are a handful of cases)
So, realistically speaking, the only way that this "taking photographs" vs. "displaying photographs" nonsense can be resolved is if the Supreme Court decides to step in - and that's pretty gosh darn unlikely.

[Dirk Rösler]

I don't quite understand how you assume you have a right to go wherever you want to, just because your overall intention is "personal expression". I would be very concerned if you had a right to enter my home for your artwork. Naturally, this is problematic to a medium photography, because you have to be there to take the picture. But the distinction seems not unreasonable, and as you state will create some serious issues. However, public places are governed by representatives... of the public, which includes you. If the majority of the public thinks photography should be prohibited in public places, then that is what will happen (aka democracy).

Try Kevin Bjorke's photopermit.org for help.

[cyrus]

I don't quite understand how you assume you have a right to go wherever you want to, just because your overall intention is "personal expression". I would be very concerned if you had a right to enter my home for your artwork. Naturally, this is problematic to a medium photography, because you have to be there to take the picture. But the distinction seems not unreasonable, and as you state will create some serious issues. However, public places are governed by representatives... of the public, which includes you. If the majority of the public thinks photography should be prohibited in public places, then that is what will happen (aka democracy).

Try Kevin Bjorke's photopermit.org for help.

I don't need help (or, the help I need isn't going to come from a website) - I just wanted to raise an alarm & let everyone know of an issue.

Its not a question of going to where-ever I want - we're all already allowed to go to public places. The question is what sort of activities we can do once we're there. It is recognized that we all can engage in constitutionally-protected free expression in such places. Now, thanks to this case, there's doubt as to whether TAKING photographs is a form of constitutionally-protected free expression. If it is "just conduct" then there is no constitutionally-protected right to take photographs, anywhere. So if the Parks Service decides that no photography will be permitted in Yosemite, you can't say that your right to take photos there has been violated. And the reason why this distinction is UNreasonable is if you can't take a photo, you can't display or sell it. Govt can now regulate photography just as it regulates any other form of conduct.

I don't want to get into a philosophical debate but as for the representatives of the public being "democratic"...the whole point of a Bill of Rights in the constitution is to ensure that fundamental rights are NOT determined by a popularity vote. That's why they're 'fundamental'

[Jim Jones]

"Personal expression" should not be the key that allows access anywhere. I can think of many reasons to limit photography in public and private places. For example, protection of the rights of others to unhindered activity and some degree of privacy. The protection of intellectual property is another. Government, commercial, and and private security should be considered. Photographers should be considerate of their victims. Paparazzi and other pushy photographers deserve no more protection than those who use inflammatory language or agressive actions in the exercise of their "personal expression."

[cyrus]

"Personal expression" should not be the key that allows access anywhere. I can think of many reasons to limit photography in public and private places. For example, protection of the rights of others to unhindered activity and some degree of privacy. The protection of intellectual property is another. Government, commercial, and and private security should be considered. Photographers should be considerate of their victims. Paparazzi and other pushy photographers deserve no more protection than those who use inflammatory language or agressive actions in the exercise of their "personal expression."

The laws already allow for privacy protection and intellectual property protection and "hindering" problems (like tripod permits.) These are not the issue.

The issue is if taking photos is just "conduct" - then taking photos OF ANYTHING can be banned, whether movie stars, or just trees and rocks. Its not just pushy paparrazi who will be effected - it is ANYONE with a camera. You don't have a constitionally-protected right to take a photo, anywhere or of anyone, because the court has ruled that taking photos is just conduct and not expression. The govt may now regulate (or outright ban) photography just like any other form of conduct, and you can't challenge it as a violation of the First Amendment.

[cyrus]

THe NPPA website states “Photojournalists clearly have a Constitutional right guaranteed by the First Amendment to make photographs in public places."

No, sorry. There is no right to "make" photographs in public places according to the D'Amario case. There is only the right to display or sell photos.