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I'm afraid that we have a lot of heads in the sand around here. A few posters have said that they are almost never hassled about taking pictures and don't think it is a serious problem. Others have gotten lost in the thickets of Constitutional law.
The finer parts of 1st Amendment case law are irrelevant when a policeman or security guard are thowing your ass off a shoot. Last month I was in NYC for a project and was thrown out of Bryant Park (third time for that park: need "commercial" permit to use a tripod), the 9-11 site at the Path platform (security risk), and out of the Battery Park (no excuse given by the Battery policeman, just "move on you are disruptive). I had no crew or equipment besides an over the shoulder bag and a tripod.
And New York is a cakewalk compared to DC where I live. I spend a lot of time at the monuments on the Mall and am continually told I need a commericial permit, especially when I am shooting LF, or told I can't use a tripod. A few months ago I went to the press office of the Park Police to get a permit, to put this to rest once and for all, and was told me that they only issue commercial permits if there are large shoots going on with trucks and crews and the like. Catch 22 for sure.
Last weekend I was rudely told by the security at the Getty in Los Angeles that I could not use my tripod on their immense and beautiful grounds. I understand the issue of tripods in museums but on the grounds? They finally made me check it. This while while their featured program is an Edward Weston exhibit. Ed Weston can exhibit at the Getty grounds but couldn't have taken pictures there.
I don't know where some of you have been shooting, but this happens to me every single week all over the country. And usually, the policeman or security guard, even when polite, has some nonesensical reason--such as protecting monument architect's intellectual property. In fact, it doesn't matter. Unless you are willing to get arrested and fight it out, or spend the afternoon in the guard house waiting for attorneys to arrive, you are screwed. You are effectively shut down either way. I have found that the tripod issue is actually more of a problem than the mere exposing film problem. I'm not sure what the answer is to all this, but I think we are going to have to have a couple of high-profile cases to clarify the law for the beat cops and the rest of us. Who wants to take one for the team?
The only times I've been hassled I was genuinely trespassing.
But that's not the point. If we end up with case law that revokes any constitutional rights to photograph in public spaces, it could encourage a flood of regulation that would be bad news for everyone.
Not just for art photographers. This could have a corrosive effect on the abilities of journalists and documentarians to do their jobs, and we all end up suffering for that.
I have NO idea how serious the cited case is. I approach this issue just as a matter of principle. In an era when civil liberties are getting pushed out the door, it's in everyone's best interest to push back.
After reviewing all this I had to go read the case. Then It turned into the "cases" litigated over a period of almost 10 years. And yes, to the US Supreme Court. I can't upload the cases to the Forum, but they are a hoot to read. I'll post a bit from the last rendition of the case below. But interestingly, I don't take away a fear of losing the right to create or display art. There is protection for artists found in the case Cyrus quotes. Part of the problem in this case is that the photographer wanted to photograph concert performers who had "no photograph/no recording" clauses in their contracts with the Civic Center and the Civic Center enforced their agreements with the performers and tossed the photographer out - many times. Reduced to the simplest argument, he wanted to create his art (photographs) from their art (concert performances) and was prevented from doing so.
The Court held:
To be sure, entertainment is a form of protected speech, see Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180-81, 68 L.Ed.2d 671 (1981), and the right to disseminate or display photographs is likewise protected. E.g., United States v. Thirty-Seven Photographs, 402 U.S. 363, 367, 91 S.Ct. 1400, 1403-04, 28 L.Ed.2d 822 (1971). The mere fact that the purveyor seeks to make a profit does not strip away the armor of the first amendment. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 1419, 55 L.Ed.2d 707 (1978). Yet, D'Amario does not claim that the sovereign has abridged his right to sell tintypes or to entertain his readership with whatever photographs he may have secured, or that his films have been censored or suppressed. At bottom, he asserts that PROCCA has restricted his conduct, thereby limiting his access to the materials which he desires to record photographically. In this context, a court must readily distinguish between expression and action, for only the former is entitled to first amendment protection under the Freedom of Speech Clause. See, e.g., Lovelace v. Southeastern Massachusetts University, 793 F.2d 419, 425 (1st Cir.1986).
The activity in which D'Amario seeks to engage does not partake of the attributes of expression; it is conduct, pure and simple. This is not a case where the plaintiff desires to “express” himself by displaying the existing fruits of his photographic endeavors, cf. Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964) (exhibition of arguably pornographic films protected by first amendment); rather, D'Amario wishes to “do” something, namely, to enter the Center and to photograph subjects of his own choosing while they are performing.
The issue before this court is not whether the plaintiff may be restricted from communicating or displaying information he has already garnered. His problem is precisely the opposite: he has come away empty-handed, having been denied license to let his camera rove at will. Seen in its true perspective, the issue is whether a photographer (or photojournalist) may have special rights of access to “information,” that is, to subjects which he desires to photograph.
The court holds that the plaintiff had no entitlement to any special sort of shutter-ready access to the events in question; that PROCCA was well within its rights to honor the contractual stipulations between Gemini and the quintet of camera-shy entertainers; and that, in enforcing the “no camera” rule, the defendants did not abridge D'Amario's first amendment rights...
D'Amario v. Providence Civic Center Authority
639 F.Supp. 1538
D.R.I.,1986.
July 30, 1986
Mike
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