more info - read page 25:
Notice there's no discussion of private v. public place. Instead the distinction was made on the basis of the "motivations" of the photographer, and whether he was engaged in communicative v. non-communicative photography.In Porat v. Lincoln Towers Cmty. Ass’n, the court distinguished the motivation of the photographer, and held there is no First Amendment protection for purely private and recreational, non-communicative photography.
Porat, a “photo hobbyist,” was stopped by a Lincoln Towers’ apartment security guard for taking pictures, and was told photographing buildings was not permitted by “management policy.” Porat continued shooting, and said he was involved in “aesthetic purposes” and “recreational” photography. The security guard put him under “civilian arrest,” but Porat refused to show the guard his pictures. The police appeared, and cited Porat for trespass. Apparently one officer said that post-Sept. 11 security concerns were the rationale for the prohibition on photography of the building.
After no one showed to prosecute Porat, he sued for, among other things, a 1983 First Amendment retaliation claim. The court held that the First Amendment did not protect purely private recreational, non-communicative photography (e.g., the image must communicate an idea to an audience). Taking photographs in and of itself is not enough, but even if so, the retaliation here was not related to it. It would seem, therefore, that photography, if it is simply defined as pressing a shutter on a camera and making an image, no longer (if it ever did) takes on automatic First Amendment protection;
So sorry, it simply is NO LONGER the case that photography even in public places is presumed to be protected by the First Amendment, and this view is growing in the courts.
There are too many lawyers...
Photographs by Richard M. Coda
Primordial: 2010 - Photographs of the Arizona Monsoon
"Speak softly and carry an 8x10"
"I shoot a HYBRID - Arca/Canham 11x14"
Adding the diatribe about racism is sure to inflame emotions but it does nothing to actually strengthen your argument. Do you want emotion or victory?
In any case, though, if you are a lawyer, why do you need to raise the issue here at all? Do you think a bunch of guys cheering you on in a photographer's forum is going to sway the opinions of a judge? What do you want?
From the edited blurb: He was arrested for trespass. The guard held him because he was trespassing while taking photos. Had he been on public property, the guard would have had no standing to hold him. Once the trespass charge was dropped, there was nothing left. You can jump up and down insisting that he was arrested for photography, but it appears to me that it went down like this:
Guard: The management has a policy of not allowing photography on the property. I'm going to have to ask you to cease your photography and move along.
Photographer: Look, I'm just a hobbyist doing this for fun. I don't mean any harm.
Guard: Nevertheless, I'm asking you to cease and move along.
Photographer: And what if I refuse?
Guard: I will call the police.
Photographer: Go ahead, then, because I refuse to move along.
Guard: I'm placing you under citizen arrest for trespassing (dials the police).
In my version, everyone is polite, but it wouldn't change the law (from a judge's perspective) even if they weren't.
It seems to me the only standing the guard (or the management) had to make demands of the photographer is that the photographer was perched on their property. They would have had no such standing if the photographer had been on public property. The trespass is everything in this case. The cops knew they could not arrest him for photography--there is no law preventing it. They arrested him for the only crime they could accuse him of: trespass. A bum pandhandling passersby in the same spot might have been arrested for the same reason, and gotten even less consideration than Porat. I read the blurb above as meaning, "There was insufficient evidence that the photography in question deserved First Amendment protection in a case where the photographer was trespassing on private property." Without the trespass charge, the photographer's case devolved to, "They were mean to me."
Rick "noting that property rights are rather sacred in this country, too" Denney
It used to be that it was simply assumed that photography as a whole was protected by the First Amendment - the taking of photos as well as the display and sale of photos. Some court decisions could have been interpretted that way. But more recently, as the New Jersey Lawyer article I linked to above mentions, the courts are making a distinction specifically for the taking of photos, by saying that while the display and sale of photos is a form of expression, the mere taking of photos by a 'recreational' photographer which are not intended to be shown to an audience etc. is NOT a form of expression that enjoys first amendment protection. So, the assumption that all photography is protected by the First Amendment is no longer valid.
And it wasn't a "diatribe about racism" - it was a statement that came from the complaint. The photographer in that case was an Israeli who spoke with an accent, and this was something that the police specifically used against him.
Once again, whether he was arrested for trespass or not is totally irrelevant because, for the zillionth time, the trespass charges were dropped. That was never an issue. The language from the Porat case, which makes a distinction between the constitutional rights of hobbyist photographers and non-hobbyists, does not make that distinction based on whether he was trespassing or not. The court said, in effect, that REGARDLESS of whether he was arrested for trespassing or not, BECAUSE he was merely a "recreational photographer", he did not HAVE a First Amendment right that could have been violated in the first place.
And I raise this issue because it is relevant to photography. See, some of us actually bother to look into things rather than sit back and talk out of our asses.
Look folks, I understand that you were told for years that you have a "right" to take photos from public places. Every single "photographer's rights" book and pamphlet etc. said that. That was an assumption that even some court decisions seemed to follow.
Well, you're going to have to accept that things change. The law on this point is changing, as the New Jersey Lawyer article points out: It would seem, therefore, that photography, if it is simply defined as pressing a shutter on a camera and making an image, no longer (if it ever did) takes on automatic First Amendment protection.
You still have the right to sell and display your photos. You also still have a right to take photos from public places IF you are engaged in "communicative photography" meaning that you're making photos with the intention of conveying a particularized message to an audience. However if you're a "recreational, hobbyist" photographer who takes photos for your own enjoyment, well, sorry, the law has started to change on your rights and you can no longer assume that the First Amendment even applies to you. As JohnNYC (who thought I was wrong about this) inadverently admitted himself, the first Amendment protects expression not hobbies. To be "expression", the photo must contain a message and be directed to an audience. This was the decision in Texas v Johnson from the 1970s. The courts are now applying that rule to photography - for photography to be expression protected by the first Amendment, it must contain an idea that is intended to be communicated to an audience. This means that taking photos for your own enjoyment is NOT considered to be a form of expression and is therefore NOT protected by the First Amendment - that was the decision in Porat, a case that was upheld on appeal, and has been cited as precedent for that view of the law several times since then by other courts deciding other photography related disputes.