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Thread: Law on photography update

  1. #1

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    Law on photography update

    As some of you know I've been involved in getting a lawsuit filed involving the right to take photos in a public place.

    I thought I should update you all on this point: we are all used to hearing the statement that photography is a First Amendment protected right. This is a statement that is widely distributed in various "photo rights" discussions.

    No so.

    There are several cases that state that only "communicative" photography is protected by the First Amendment - meaning photographs that are intended to communicated a specific, identifiable message to an audience. Photographs taken by someone for their own personal enjoyment are NOT "communicative" and would therefore NOT be protected by the First Amendment, according to these (recent) cases. So in other words, no, you don't have a right to take a photo, even from a public place, unless you can also specify what particular message that photo contains, and to whom you will be communicating that message.

    So, for example, if you're visiting NYC and want to take a photo of the Brooklyn Bridge for your own interest, you don't necessarily have a right to do that. If you wanted to take a photo of your spouse, just because you wanted to have a photo of your spouse, you don't necessarily havea right to do that either. You would only have a legal right to take these photos if you intended to communicate some message about the bridge or your spouse, to OTHER people.
    Of course this is a silly distinction between "communicative" vs "non-communicative photography" - this would mean that, for example, writing in a diary is not protected by the First Amendment because you don't intend to allow others to read your diary entries (no audience.) But nonetheless, these cases are on the books.

    I mentioned this potential interpretation of a case, in a posting I made on this forum in Sept 2007 (which degraded into a name calling match.) At the time there was some skepticism that I was reading the case correctly - the case could have been read to simply prohibit access to a private function, and not prohibit non-communicative photography in general. Since then other cases have been decided, holding that photography per se is not a First Amendment protected right, but only "communicative" photography is protected.

    So in other words while displaying or selling photography is protected by the First Amendment, taking photos is not necessarily protected, if it is done purely for your own recreational interest.

    See for example Porat v. Lincoln Towers Cnty. Ass’n, No. 04-3199
    http://scholar.google.com/scholar_ca...=1&oi=scholarr

    In that case an NYC photographer was taking photos of some buildings while on the property of the building. The security guard had him cited for trespassing. The court decision, however, went well beyond the proposition that you can't trespass to take photos. It also said that recreational photography is not a First Amendment right. So in otherwords, the photographer, because he described himself merely as a "hobbyist", would not have had a right to take photos, even if he wasn't trespassing, because he didn't intend to sell or show his photos.

    He effectively disclaims any communicative property of his photography as well as any intended audience by describing himself as a "photo hobbyist," (Compl. 16), and alleging that the photographs were only intended for "aesthetic and recreational" purposes. (Compl., 26) Although Plaintiff cites a number of cases that protect photography under the First Amendment, each of these cases is distinguishable in that the "speaker" intended to communicate a message to an audience, an intent that is not alleged here....

    These cases all concerned protected First Amendment conduct not because the plaintiffs used cameras, but because the cameras were used as a means of engaging in protected expressive conduct. They do not, as Plaintiff suggests, stand for the proposition that the taking of photographs, without more, is protected by the First Amendment.
    Again, this newly-created distiction between 'recreational, non-communicative' photography and other forms of photography, this is a HUGE loophole in the idea that photography is a First Amendment right.
    Last edited by cyrus; 17-Oct-2011 at 11:14.

  2. #2
    Steve Smith's Avatar
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    Re: Law on photography update

    I don't know what a first amendment right is (being English) but if there is no specific law banning photography then it must be o.k. to do it.


    Steve.

  3. #3
    Format Omnivore Brian C. Miller's Avatar
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    Re: Law on photography update

    Quote Originally Posted by Steve Smith View Post
    I don't know what a first amendment right is (being English) but if there is no specific law banning photography then it must be o.k. to do it.
    From The Bill of Rights: A Transcription:
    Amendment I

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
    The U.S. Constitution has a number of amendments, and the first ten being contained in the Bill of Rights. The issue in the U.S. is how much coverage does the First Amendment provide to its citizens. The answer seems to be, not much at all if you're just a guy on the street. Therefore, the answer for me is to start your own news service.

  4. #4
    Daniel Williams DarkroomDan's Avatar
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    Re: Law on photography update

    Quote Originally Posted by Brian C. Miller View Post
    From The Bill of Rights: A Transcription:

    ... Therefore, the answer for me is to start your own news service.
    Publish it in your blog.
    Dan Williams
    Enumclaw WA

  5. #5

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    Re: Law on photography update

    Interesting observation Steve. As the UK does not have a single, written Constitution like the US does, let me explain it a bit: there are laws that prohibit photography being enacted, and the question is whether these laws are valid

    The First Amendment of the US Constitution -- the highest law of the land which all other laws and government actions must abide -- declares that there is a thing called the freedom of expression. What the precise meaning and application this is, is open to dispute.

    In a case a few years ago, a fellow in Texas burned the US flag as his way of expressing his opposition to the Vietnam war. The US Supreme Court - the highest court in the US - said that conduct can constitute a form of expression. Therefore the conduct or act of burning a flag can be a legally protected form of expression, and therefore laws that prohibited flag burning were invalid. However, non-expressive conduct would not be protected. Throwing a ball or chopping wood, for example, are non-expressive forms of conduct which are not protected by the COnstitution. Similarly, burning the flag just for kicks (as opposed to doing so in order to convey a message) would not be protected.

    The distinction between expressive and non-expressive conduct is, according to the court, in whether the conduct in question contains "an intent to convey a particularized message... and [whether] the likelihood was great that the message would be understood by those who viewed it."

    In other words, conduct (such as flag burning) can be protected by the Constitution as a form of expression, IF the conduct was 1- intended to convey 2-a particular message 3- which would be understood as such by 4- an audience. So in short, for conduct to be protected as a form of expression, it has to contain a message communicated to an audience.

    So now we come to the problem of taking a photograph (note that we're not talking about selling or displaying photos here - just the act of setting up your camera and pressing the shutter release button.) Is TAKING a photo an ordinary form of "conduct," like chopping wood or throwing a ball or is it "expressive conduct"?

    According to recent case law, if you're taking the photo purely as a hobbyist and for your own recreational purposes, it is NOT expressive conduct, and is therefore NOT protected by the Constitution, because you're not communicating a particular message to an audience. You're just doing it for your own enjoyment. Thus, governments are perfectly free to outright ban you from taking photos or impose other highly onerous restrictions on you.

    And that sucks for a vareity of reasons. Do you enjoy writing poetry? Unless you intended to have your poetry read by others, you don't have a right to do that, and the government can theoretically throw you in jail for writing poetry for your own enjoyment. Do you enjoy taking photos of your children for your own enjoyment, even though your photos don't contain a particular message, and you don't intend to show an audience? Guess what....

  6. #6
    Joshua Tree, California
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    Re: Law on photography update

    Burn all the Bibles !

  7. #7

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    Re: Law on photography update

    Quote Originally Posted by DarkroomDan View Post
    Publish it in your blog.
    But that means only photos that you intend to publish on a blog are legally protected. Anyway, to be protected the photo must also convey a "particularized message". This assumes that every photo is intended to contain a particularized message. Can you identify the particularized message in Moon Over Hernandez that Adams no doubt must have intended to convey? I sure can't. (note that the court said aesthetics wasn't good enough so "wow what a pretty moon" would not be enough reason.)

  8. #8

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    Re: Law on photography update

    This case law hardly seems like the final word on the matter.

    The fellow was merely cited for trespassing once a cop showed up. Released on the citation, he apparently had that ticket kicked when no one for the prosecution showed up in court. He next turned around and sued for false arrest and malicious prosecution-- and this seems to be the suit in which he did not prevail.

    Doesn't exactly seem like any big precedent-setting case from where I sit--is there something more too this?

  9. #9
    Steve Smith's Avatar
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    Re: Law on photography update

    Quote Originally Posted by Brian C. Miller View Post
    The U.S. Constitution has a number of amendments
    Is there anything to stop the US having any more amendments? And can an amendment reverse anything in the previous amendments?

    Quote Originally Posted by Ivan J. Eberle View Post
    The fellow was merely cited for trespassing once a cop showed up.?
    There is a difference here between US and English law. In England, trespass is a civil rather than a criminal offence and the police have no power to make you leave an area you are trespassing in. It is up to the land owner to obtain a court order.

    A land owner may use reasonable force to remove a person but only if he has reason to believe that the person is likely to damage property or harm another person.

    The police tend to use public order law to remove troublesome trespassers but you can only be cautioned for a public order offence, not arrested.

    It is common to here to see signs stating "Trespassers will be prosecuted". The reality is that they cannot be prosecuted as they have not committed a criminal offence.


    Steve.

  10. #10

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    Re: Law on photography update

    Quote Originally Posted by Steve Smith View Post
    Is there anything to stop the US having any more amendments? And can an amendment reverse anything in the previous amendments?


    Steve.
    There's nothing to stop us from passing more but the difficulty of passing 'em.

    And we have repealed one, the 19th Amendment, which prohibited the sale of alcoholic beverages. What it did in fact was provide a protective tariff in favor of organized crime ("The Mafia"), just as our current laws (not a constitutional amendment) that ban use of controlled substances (dope of all kinds but model airplane) protect the drug trade.

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