Law on photography update

[AF-ULF]

Can I be arrested for photographing in public places? That is a statutory question. Currently, there is no statute prohibiting such photography, so the answer is no.

Can the legislature, city council etc. pass a law/rule/regulation prohibiting photography in public places? That is a constitutional question. If such a law is passed and constitutional, than one could be arrested for photographing in a public place.

The case under discussion at least opens the possibility that a governing body could outlaw photography in public places on a very limited basis, if it is not communicative. Photography which meets the requirements outlined in the case could not be banned, as it is protected speech/expression under the first amendment.

I now remember why I gave up quit practicing law on a regular basis.

[John NYC]

Dude. That is exactly what I have been saying, they have to stop you from photographing using some other reason. They cannot say you need to stop photographing. Because there is no law against photographing. They can say, I need you to move along because you are loitering.

This is EXACTLY what I have been saying, and why you have not understood that is beyond me. Photography is not illegal. So no one can make me stop photographing purely because I a photographing. They would have to bring in some other factor where I am breaking a law where they can make me leave, which will have same effect.

No one can arrest me for photographing.

And if you don't believe me that this is what I have been saying (because you do seem to be trying to twist my words with almost everything I say)... here are some direct quotes of mine from 11 separate posts trying to get this very point across to you that you just made in your post above...

"No one can stop me from photographing from a public sidewalk as long as I am not breaking any other city ordinances."

"What I said was if you are not breaking any other laws, no one can stop you from taking photos in a public place. And that is true. They can arrest you for something else, but not for that."

"In the United States it is not illegal to take pictures when in a public space if you are breaking no other laws."

"The cops can arrest you for anything BUT THEY CANNOT arrest you FOR making photos in public places. They can arrest you for just standing there. It is called loitering. If you don't have a camera it doesn't matter."

"They can arrest you for any offense they can make fit the situation. You would then have to challenge it later if it was bogus."

"They can't stop me from photographing per se. There is no law against photography. They can tell me to move on for some other reason, which I CAN challenge in court. I do not know how to explain it any other way. Photography is not illegal."

"Just like photography, there is no law against doing any of those things. And a cop can tell you to move along and get out of an area (rightly or wrongly) wether or not you have a camera in your hand."

"And by the way, they can't tell you to stop photographing either... you know why? Because there is no law against photography. They'd have to make up another reason. Just like they would if they told you to stop blinking."

"Photography is not illegal in the United States of America. You cannot be arrested (legally) for taking a picture from a public space. You can only be arrested for some other law you are breaking, perhaps while taking a picture."

"And by the way, they cannot stop you from photographing. ... They have to stop you for something else. ... Why? because you are not breaking any law by photographing in public."

"And what it didn't change is that the police could always stop you from photographing by making up some other excuse. They still can so that. They could do it before. But they STILL cannot stop you from photographing, legally."

[John NYC]

Can I be arrested for photographing in public places? That is a statutory question. Currently, there is no statute prohibiting such photography, so the answer is no.

Can the legislature, city council etc. pass a law/rule/regulation prohibiting photography in public places? That is a constitutional question. If such a law is passed and constitutional, than one could be arrested for photographing in a public place.

The case under discussion at least opens the possibility that a governing body could outlaw photography in public places on a very limited basis, if it is not communicative. Photography which meets the requirements outlined in the case could not be banned, as it is protected speech/expression under the first amendment.

I now remember why I gave up quit practicing law on a regular basis.

Exactly. I wish this post had made it In after mine and was the last ever on this thread.

[cyrus]

Can I be arrested for photographing in public places? That is a statutory question. Currently, there is no statute prohibiting such photography, so the answer is no.

Is there a statute that says you can be arrested if you balance turtles on your head whilst riding a unicycle through a sidewalk and shoot lasers into the air? No, there most certainly is no such specific statute. Can you be arrested for it anyway? Sure. Why? Because the cops could arguably say that by engaging in such a course of conduct, you're "Causing a disturbance" (amongst many other things!) Similarly, if you're taking non-communicative photos, you could be arrested FOR taking photos and THUS automatically "causing a disturbance." Your very ACT of taking photos BY ITSELF could be interpretted as the same as "causing a disturbance," just like the mere act of riding a unicyle whilst balancing turtles can be causing a disturbance. There doesn't have to be any other negative consequence from your action - the act itself is sufficient to be a violation of the law. (This is a very basic principle of the law btw. If there's a law that generically says "stealing is prohibited" all you have to do to violate that law is to steal. There is no need for any other thing to be proven - that for example by taking some candy without permission, you caused someone some grief. Why you stole, how you stole, or what you stole would be totally irrelevant. It would be stealing if you took a car, candy or cameras. There's no need for the law to define explicitly the things which could constitute stealing, if taken without permission. The mere act of taking something - ANYTHING - without permission is itself defined as stealing, and threfore a violation of the law, end of story.)

Point is that there doesn't have to be a specific law that explicitly addresses each and every conceivable situtation. It is enough that the existing laws can be interpretted to fit the particular conduct. If your casual, NON-communicative photography is (in the cop's discretionary judgment) "causing a disturbance" etc, and you refuse to abide by the policeman's order to cut it out, yes, you can indeed be arrested. There doesn't have to be any specific law on the books that explicitly bans photography IF non-communicative can be made to fit under an existing vague, generic prohibition, such as the prohibition on "causing a disturbance."

The case under discussion at least opens the possibility that a governing body could outlaw photography in public places on a very limited basis, if it is not communicative.

There is no particular need for the legislature to take any such step when existing laws (such as laws that prohibit causing a disturbance) can be quite legally stretched to prohibit to non-communicative photography in public places, and furthermore you would have a very hard time convincing a court that such a law was improperly stretched to prohibit non-communicative photography (since it isn't a constitutional right, the courts will generally defer to the police's judgment.)

To spell it out yet more explicitly for the benefit of JohnNYC: A cop can say non-communicative public photography is itself a cause of disturbance, and since causing a disturbance is prohibited by such-and-such law, therefore you must stop taking photos or go to jail. And whether you really are causing a disturbance or not will practically never be an issue that the courts will bother second-guessing.

Once more: if there is for example an existing law that says effectively that "Causing a disturbance is prohibited" - it really doesn't matter precisely HOW that disturbance was created. Torturing kittens, chopping wood, twirling batons, riding unicyles whilst balancing rabid turtles ... or taking non-communictive photos, all could be prohibited, even if there's no mention of these specific acts in the law. There's no need for the law to specifically prohibit photography, any more than the law would have to specifically prohibit balancing turtles. See? And there is no need for any actual disturbance to happen. Clear??

And since we already have several such vague, generically-applicable laws on the books, then YES, you can indeed be arrested for public, non-communicative photography if one of those laws can be interpretted to apply to your conduct of photography. (in fact since these laws are deliberately designed to be generic and vague, it would not hard to interpret them to fit new sorts of conduct that may not have been considered to be a problem in the past, at the time the laws were drafted.)

[tgtaylor]

Thank you Thomas, I am well aware and quite familiar with the 14th Amendment, which has no particular bearing on the issue.

I beg to differ.

If, for purposes of enjoyment of a legal right, you are separating a class in two different entities, as you appear to be doing, for entitlement to that right namely the photographic "hobbyists" who seeks nothing more than personal edification and gratification, and the "communicative" photographer who seeks to "communicate" an idea or opinion, then the due process and equal protection clause of the 14th Amendment would have a very strong and decisive bearing on the issue. The separation of a class into two different classes for purpose of entitlement would be legal under the 14th Amendment if, and only if, there exists a compelling public interest supporting such a sub-classification. I can see no compelling public interest being served by classifying photographers as hobbyists or communicative for purposes of free speech protection. Can you?

Thomas

[Steve Smith]

All Cyrus is really suggesting is that it is possible for the US government to change the law.

So what? This is true of most governments in the world but it's not very likely to happen.


Steve.

[cyrus]

Dude. That is exactly what I have been saying, they have to stop you from photographing using some other reason.

No not for some "other reason". For the act itself. If the act of non-communicative photography ifself is deemed by the police to automatically constitute one of the many forms of "causing a disturbance" (for example) then the act of taking photos is itself effectively illegal. There doesn't have to be any thing else or any other reason beyond that. The conduct itself is treated as a violation of the existing law.

Let me give you an example. Suppose there's law that says "stealing is prohibited." Then, all you have to do violate that law is take something without permission. Nothing else need be proven. There doesn't have to be any other reason to bust you. It doesn't matter what you take, how you take it, or why you took it, or if there were any other negative consequences from your act of stealing. The fact that you took something is itself a violation of the law, automatically. ALL The different forms of stealing would be prohibited automatically.

Similarly, if taking non-communicative photography is deemed to be BY ITSELF a "cause of disturbance" - and you engage in non-communicative phtogoraphy, then there is no "other reason" needed to cite you for "causing a disturbance." The act of taking non-communicative photos, by itself, is a violation of the law, automatically. See? All the forms of causing a disturbance - including taking nonc0mmunicative photos - would be prohibited.

So now you're no doubt going to say "But how can any law enforcement official or judge believe that taking a photo is by itself automatically disturbing? How can that ever be?" The point is that they don't have to answer to you about this. What sort of conduct is and is not disturbing is left to their discretion - it is their job to decide this. Because you don't have a constitutional right to take non-communicative photos, you effectively CANNOT challenge their conclusions and opinions. Since you don't have a constitutional right to take non-communicative photos, it isn't any of your business WHY the police deem this to be automatically disturbing. See? Similarly, you don't have a constitutional right to drive so you have no basis to complain if the police decide to close a highway lane beause they think it is dangerous. Whether it is dangerous or not is not left to you or anyone else to decide. It is in their discretion.

(To be more exact, you could theoretically file a law suit agains them, and say "non-communicative photography should not be automatically considered to be disturbing." Then the judge will laugh and rule against you, because in non-constitutional issues, the courts don't tell the other branches of government how to conduct their affairs. Your only option is to go vote for a police commissioner or mayor who also thinks the same as you do on the matter. But In contrast, had you been complaining about a violation of a constitutional right to take communicative photos, then the courts would apply "strict scrutiny" and would probably rule in your favor.)

[cyrus]

I beg to differ.

If, for purposes of enjoyment of a legal right, you are separating a class in two different entities, as you appear to be doing, for entitlement to that right namely the photographic "hobbyists" who seeks nothing more than personal edification and gratification, and the "communicative" photographer who seeks to "communicate" an idea or opinion, then the due process and equal protection clause of the 14th Amendment would have a very strong and decisive bearing on the issue. The separation of a class into two different classes for purpose of entitlement would be legal under the 14th Amendment if, and only if, there exists a compelling public interest supporting such a sub-classification. I can see no compelling public interest being served by classifying photographers as hobbyists or communicative for purposes of free speech protection. Can you?

Thomas

Please Thomas, don't assert legal matters that you don't have sufficient background in, there's enough BS on this board. FYI the 14th amendment equal protection clause bars discrimination on the basis of RECOGNIZED SUSPECT classes - on the basis of race, national origin, gender, etc. -- not on the basis of whether you're a photographer who takes communicative or non-communicative photos. And in any case I am not the one making this distinction - the court in Porat made this distinction, and the 2nd highest court in the US agreed with them.

[cyrus]

All Cyrus is really suggesting is that it is possible for the US government to change the law.

So what? This is true of most governments in the world but it's not very likely to happen.


Steve.

To be exact the change in the law has already happened, and Porat spelled it out in the form of a precedent - you don't have a right now (if you ever did) to take non-communicative photos. There's no need for any other change of law. Right now, the police can quite legally prevent you from taking non-communicative photos even in a public place, and you would have no capability to challenge them in court because none of your recognized rights would have been violated.
Now, if thus far the police have CHOSEN not to use this power, that's a different matter. But they have the power.

[Steve Smith]

Cyrus, I don't think you are right. i.e. I don't think the police have the right to prevent you taking photographs in public, communicative or not (how do they make that judgement anyway?).

If you are right... well, I'm glad that I live in England - The land of the free!


Steve.