My read of the linked law review piece earlier in this discussion described Porat as trying to "bootstrap" that dismissal of the trespass citation, into what sounded to be an essentially frivolous lawsuit for false imprisonment and malicious prosecution. He did not prevail. The side issue of the first amendment is a very, very minor aspect to that. This does not seem to be a precedent setting case, or even a particularly important one.
Much worse outcomes happen to pro photographers than happened to poor amateur Porat. I was directly involved in something with far more "chilling effect" several years ago, yet was advised (by several attorneys) that it would be an utter waste of time and money to attempt to pursue any recourse after charges were dropped. There are shield laws that protect most local state and federal government agencies and officers from being sued for arresting someone, unless malicious prosecution can be shown-- a very difficult thing to prove even though it very likely happens with some regularity.
Cyrus, I understand your point and I agree there is a larger issue than what I implied. But I think it is a very minor concern. Certainly I have been harassed as much as anyone here, especially in my reckless youth when I photographed very aggressively.
I've found considerable sympathy in Police Departments and the Courts for what I was doing. I've survived numerous cases but here is one that was very successful for me.
I was setup with an 8X10 along Route 85 in Marlboro MA. photographing a severely polluted pond at the base of the old Marlboro landfill. Two town police cars came screaming up. Boy these guys really hasseled me but I refused to shut down. So they seized me and my gear and booked me into the local jail. I called my lawyer friend who easily guessed my predicament and I was eventually bailed out. Officially the charge was trespassing and that old "public nuisance" gig. Yes I was slightly on town property. I filed a complaint and later brought suit against the town police dept. At the time the landfill was a hot environmental political issue so I could understand the pressures. At a conference with town officials it was clear that none of them wanted any publicity. My lawyer was not intimidated. The court hearing (trial) got me $5000 and a police escort back to the site to finish the photography (terrific deal). Though I will say the judge was furious at the police dept. Of course I had to agree that the images would never be published but then the 5 K at the time was far more than I could get from any newspaper sales.
Anyhow I have found that the right to photography in both public and private places is pretty pervasive. I don't see much change in my lifetime of photography from early fifties to now. But vigilance is a must.
So get out there with your big cameras and get in the noses of your public officials and be intrusive. This is the best of free enterprise and why we live in an open society. Don't be intimidated by anyone.
Nate Potter, Austin TX.
Furthermore there are plenty of places in NYC which are technically private but the public nevertheless has a right to enter. "Liberty Park" - where the Occupy Wall Street demonstrations are located - for example is privately owned. Note that the judge in this case didn't say that Porat didn't have a right to take photos because he was a trespasser and a bad guy in general etc. No, the ruling was that SINCE HE WAS A HOBBYIST PHOTOGRAPHER, the photos he was taking were PRESUMED to be non-communicative (not intended to convey a particularized message to an audience) and were taken only for his own personal use - and therefore he did NOT have the first amendment right to take those photos. The fact that he was trespassing never entered into the judge's reasoning here. Trespassing or not, that had nothing to do with it. The judge didn't rule that trespassers didn't have first amendment rights, he ruled that hobbyists recreational photographers didn't have first amendment rights.
So the next time you see one of those "Photo Rights" handouts that claim "Photography is a First Amendment Right" - no, sorry, not true. Not if you're "just" a recreational hobbyist photographer who is taking photos for your own personal enjoyment.
If tomorrow you haul out your camera and decide to take some photos of the Brooklyn Bridge or the Empire State Building etc, and you are mere "hobbyist" photographer, and a security guard or a policeman gets in your face (as they are apt to do) you do NOT have the right to refuse their order to stop taking photos - even of public monuments, from public places. That IS a big deal.
Every single "Photographer's Rights" handout that you carry in your bag which says that you have some sort of "right" to photograph things, even in public places, is wrong. You do NOT have that right if you're taking photos for yourself and just because you like how something looks. No, to have a "right" to photograph things, even things that are entirely located in public, are not trademarked or copyrighted etc., you have to show that you were intending to communicate a particularized message to an audience through your photography.
In Britain, in contrast, they have (had, actually) the opposite principle of Parliamentary Supremacy - anything parliament says is law, is law. Parliament could declare night to be day, or that everyone named Joe should be executed immediately, and that would be binding on all courts in the UK. The courts had no power to invalidate an Act of Parliament.