Is there case law to conflate "free speech" with "free thought"? I agree that free thought is a basic human right. But we are talking about actions (making a photograph) not about thought. If you are going to attract regular people to your cause, you need to be more concrete. I think that most people would agree that free expression is a component of free thinking, but not necessarily that free thought demands free expression. Whether or not that is already settled law won't help if you don't build general support.Originally Posted by cyrus
Remember that the people desiring to diminish free photography are not some evil wannabe dictators in some underground bunker somewhere. They are your neighbors, who don't want you to paw at pictures of their kids, or publish pictures of their houses, or show the world the messes in their back yards. The people that own those buildings are not the government, they are just plain property owners that don't want pictures of their property used in ways that hinder their business. In the last 20 years, more basic freedoms have been attacked at the neighborhood level than at the federal level. Just ask amateur radio operators, who, despite federal law allowing reasonable construction of antennas, are repeatedly constrained by homeowner groups and town aesthetics councils from spoiling the view for the neighbors. One reason I can't get decent cellular (or internet) service where I live is because people think their rights are being violated when one of their neighbors leases his land to a cellular company to build an antenna tower. Most people around where I live have to have a permit to remove a tree, even if it has been leaning precariously over their house since the last thunderstorm. If you want to restore an old car, forget doing it in the driveway of most communities near and in big cities. If you want to raise a barn, you'll spend months getting a permit, slowed down by your neighbors who are convinced that your barn will ruin their lives (or at least their property values), and who will fight you unless the barn looks the way they want it to look (which for some may require painting it invisible). I once went before a "historical" review board when I needed to replace the traffic signal controllers in that neighborhood, and they insisted I paint these anodized aluminum cabinets forest green when they had always been silver going back to the first ones in the 1930s (I had pictures to prove it). Their interest was not history, but meeting their idea of what looked good to them that day. (That paint is now peeling badly, 20 years later--paint doesn't stick to anodized surfaces very well). It's easy to blame all this on government or corporations, but the trend to diminish personal freedoms is not unpopular with most people, until it is the particular freedoms they cherish that are under attack.
You are right that we don't know if having a web page constitutes "communicative" speech, though I think it would be hard to prove otherwise. That's why a case testing that definition would be useful, it seems to me. If a person is making a photograph, and claims that all their work has the intention of being communicative, their case would be undermined, it seems to me, by not having any way to display their work. A web page would certainly do that, but so would a photo album on facebook, which already have an established history of providing a reportage value. So would prints hanging on the wall, and albums shown to visitors.
One question is whether a photograph is communicative merely by being communicated. That's where this "particular message" comes into play. But a case cleanly testing this could, it seems to me, draw from the Jackson Pollack example used previously. I think a good argument could be made that any displayed photograph has the intent of being communicative, even if the communication cannot be expressed in words (else, why would an image be needed?). Any protections normally afforded to painters should automatically be afforded to photographers.
Now, could Jackson Pollack have made a painting in that private-but-publicly-accessible space Porat was using? I'd bet not, and I'd further bet that an action he might have brought on the basis of the freedom of speech might have had the same result as with Porat.
You have complained several times in this thread that since Porat first applied the standard of communicativeness to photography, the definition of that communicativeness has been floating free. That's why I suggested cases that would help pin it down. I'd rather define what is speech, if it can be defined broadly enough so that any photographer that cared could envelope themselves in it, because I think that stands a better chance than undoing something like Porat, which seems to me like kicking the dirt at this point, unless we are fortunate enough to have a landmark case come along. Of course, the right case cold be argued for both, it seems to me, so that even a partial victory would be possible.
Rick "wondering how we would move this away from tilting at windmills" Denney
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