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.
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
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.
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.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.