Your right to take photographs is in v. serious danger

[Bob Gentile]

"...What's there to disagree with... if you want to express yourself through a photograph, you first have to engage in the conduct of taking the photograph..."

What's to disagree with? As I understand D'Amario, you don't HAVE a Constitutional right to "express yourself through a photograph." You DO have a Constitutional right to express yourself. Period. But the MEANS of expression are not protected. Political extremists have a right to express themselves, but not by blowing up buildings. You have a right to express yourself but not (necessarily) by taking a photograph.

Apparently, you don't recognize the distinction between "expression" and the "means of expression." Or maybe you believe we DO have a Constitutional right to express ourselves through photography -- or whatever other means we choose. Well... that's where we disagree. But THAT'S OKAY. That's what diversity is all about, right? Celebrating our differences?

[cyrus]

What's to disagree with? As I understand D'Amario, you don't HAVE a Constitutional right to "express yourself through a photograph." You DO have a Constitutional right to express yourself. Period. But the MEANS of expression are not protected. Political extremists have a right to express themselves, but not by blowing up buildings. You have a right to express yourself but not (necessarily) by taking a photograph.

Apparently, you don't recognize the distinction between "expression" and the "means of expression." Or maybe you believe we DO have a Constitutional right to express ourselves through photography -- or whatever other means we choose. Well... that's where we disagree. But THAT'S OKAY. That's what diversity is all about, right? Celebrating our differences?

This is an incorrect understanding of D'Amario. You do have a right to express yourself through a photograph meaning through the sale or display of a photograph. That's not in question and has been confirmed repeatedly by all the courts. Rather the D'Amario judge seems to say that you don't have a right to CREATE a photograph. See, he makes a distinction between the MAKING of the photo and the DISPLAY/SALE of the photo.

[Bob Gentile]

"... Rather the D'Amario judge seems to say that you don't have a right to CREATE a photograph. See, he makes a distinction between the MAKING of the photo and the DISPLAY/SALE of the photo..."

That's exactly my point. You have a Constitutional right to express yourself. There is no right to do that by creating a photgraph.

Sorry for the confusion.

[cyrus]

That's exactly my point. You have a Constitutional right to express yourself. There is no right to do that by creating a photgraph.

Sorry for the confusion.

OK this will be the end of this as far as I am concerned: IF YOU CAn"T CREATE IT, YOU CAN'T EXPRESS IT, whether its a photograph, a banner, a book, or whatever

[cyrus]

"the judge did draw a distinction between a general First Amendment right to photograph and a right to photograph newsworthy events."

Who decides what a 'newsworthy event' is?

Presumably, if there's a dispute, ultimately a judge decides.
Of course I should point out again that the view in D'amario is not yet the law in the US.

[RDKirk]

The D'Amario decision is not (yet) binding on other courts and could simply become a misguided long-forgotten minority view (assuming that it is relevant at all - several lawyers have opined that in all probability it will be limited to a "right to access" decision and not a decision about the right to photograph in general.)

"Right to access" is the point of the case you raised. You're claiming that for any person or the government to limit any photographer's "right to access" to any venue is the same thing as an infringement of the First Amendment.

[cyrus]

"Right to access" is the point of the case you raised. You're claiming that for any person or the government to limit any photographer's "right to access" to any venue is the same thing as an infringement of the First Amendment.

No, it is not. I specifically said the danger is about the right to take a photograph in general (which is interpretted as conduct), not the right to access.

Quote from my second post in this thread:

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.

[kmgibbs]

Your argument has been for the right to create without restriction, not the right to express. Still two separate acts. What doesn't seem to stick with you is that public safety and welfare trump personal liberty. Always have.

So rather than seek the needed permission or raise your concern with your local representative, you'd rather litigate. I'm trying to understand this. What do you hope to gain?

[kmgibbs]

No, it is not. I specifically said the danger is about the right to take a photograph in general (which is interpretted as conduct), not the right to access.

Quote from my second post in this thread:

Your 'right' to make a photograph has not been infringed. Only your 'right' to access an area you believe you have a 'right' of access to.

No one was preventing you from going somewhere else to make a photograph. So it is not about the photography, and it is about access.

[cyrus]

Your 'right' to make a photograph has not been infringed. Only your 'right' to access an area you believe you have a 'right' of access to.

I brought up the D'Amario case only on the question of whether there's a general constutionally protected right to take a photograph, not on the question of a right to access issue, which is a separate matter (and much more easily handled since there's already plenty of case law in my favor on that point.)

No one was preventing you from going somewhere else to make a photograph. So it is not about the photography, and it is about access.

Not so long ago you were telling me that I didn't have right to take photographs and now you're telling me that's not the issue but instead I don't have a right to access .

So, having established that there IS a right to take photographs, the next question is whether there is a right to take photos of particular places.

Here, let me clear up the separate issue of a right to access: Govt can indeed require permits for the exercise of free speech - not just in train stations but EVEN in a totally public place like a public street, or even on your own front lawn. There is, as I keep repeating, no ABSOLUTE right to free expression and there are perfectly valid ways/reasons for the gov't to impose a requirement that you have to get a permit before exercising your free speech rights.

However, such permit regulations have to meet certain constitutional requirements. If they don't meet these requirements, they're illegal. In fact, such permit regulations are PRESUMED to be unconstitutional & (The Doctrine of PRior Restraint) That's the situation with the Path system's regulations: it doesn't meet the requirements for constitionality.

In general you do have a right to access public places as well as govt places open to the public, and in fact several court cases have ruled that you have a right to, for example, distribute political flyers at these and similar sorts of places. While the go'vt can legally require permits to do all this, the permit regulations have to meet constitutional requirements. So, the question then isn't about a "right" to access but whether the gov't permit scheme imposed on that right meets the legal, constituitional requirements.

In the particular case of the Path system, the regulations do NOt meet the constitutional requirements.

Now, before we talk about what sort of permit regulations are constitutional or not, I suggest a lot of reading up on what the constitutional requirements for such permit regulations are. I suggest starting with the case of Shuttlesworth v. Birmingham, and going on from there. In that case, the city regulations said that they could deny permits for reasons of "the public welfare, peace, safety, health, decency, good order, morals or convenience" - and the Supreme Court ruled those to be unconstitutional reasons to deny permits.