It's interesting to note that Justice Holmes's famous quote about shouting fire in a theater comes from a decision in a case (Schenck vs. United States) involving the arrest of a man for the *peaceful* distribution of anti-draft leaflets during WWI - conduct that most of us would probably feel ought to be protected as political expression, whether we happen to agree with it or not.
Steve
Originally Posted by Bob Salomon - HP Marketing
I believe that he also had the required permits to do this. Plus he had plenty of publicity before the shoot in the NY press and media.
A. You're still concatenating action and expression. No judge is going to rule that every possible action is protected because it might lead to an "expression."
B. It's not even true that every form of free expression is protected. I certainly can't express my anger at a jaywalker by running him down. In fact, I can't even threaten (and a threat is certainly an "expression") to run him down.
C. You're ignoring the specific case you mentioned in which public access and public behavior is legally controlled.
Again, no one claimed that all forms of expression are always protected, a fact that I am well aware of but taking a photograph isn't the same thing as running down a jaywalker is it? And I am not ignoring anything (and can't be ignoring since I brought it up in the first place.) The D'Amario decision is not (yet) binding on other courts and could simply become a misguided long-forgotten minority view (assuming that it is relevant at all - several lawyers have opined that in all probability it will be limited to a "right to access" decision and not a decision about the right to photograph in general.) What one court in Rhode Island claims isn't necessarily going to apply to another court someplace else in the US of A. I have since found several cases applicable to NY that indicate that the creation of a photograph is a form of expression subject to First Amendment protections. The courts have in fact ruled that the creation or expression of the "thing" is itself not relevant - the artwork is just a thing which isn't capable of expression; rather, the artist expresses himself THROUGH the artwork, so the question isn't really about the artwork itself and its creation or sale. That's some encouraging language, no?!
Ah, but the city was going to deny his permit - and his permit was only required because he was going to use a tripod etc otherwise there is no permit requirement. The point, however, was that the taking of a photograph was treated as implicating the First Amendment, rather than simply conduct.
While every act of creation does not necessarily lead to expression, every act of expression does require an act of creation. If you can't paint a banner, you can't wave it. If you can't write a leaflet, you can't distribute it. If you can't take a photograph, you can't show it.
See above.If you read the definition of expression in the link I included you could see quite clearly that expression requires outward communication. Creation does not need this outward communication.
Your argument is still based on the assumption that creative acts must lead to expression. This is simply not true. You can paint a banner, write a leaflet or make a photograph without any expression. (Keeping in mind the definition of expression)
banner, write a leaflet or make a photograph without any expression.\
I have no idea where you're getting this from - I haven't said "must" anything nor have I ever used the phrase "creative acts". I don't claim a protection for all conduct which may or may not result in expression - I claim a protection for expression (waving the banner at a demonstration) AND the subset of the forms of conduct that are required for that expression to occur (painting the banner.) For every expression to occur, some conduct must happen - for a banner to be displayed, it must be painted first. Those forms of conduct are an inherent and inseparable part of the expression. The painting of banners must therefore be protected, even if the actual act of painting is not expressive, because the WAVING of the banner is expressive, and you can't wave a banner unless you paint it first. The painting of banners is therefore deserving of first amendment protection, as much as the waving of the banner. If the conduct is banned, then the expression is effectively banned.
Frankly I'm done going over this especially since the the conduct/speech distinction has been eroding at the Sup Ct level, and 2nd circuit has swept aside the creation/expression issue and by instead concentrating on the "expressive capacity of the goods" themselves.
""We are aware, of course, that objects themselves do not actually communicate-people do. That is, people may, by creating or selling artistic objects, engage in protected speech ..."
and furthermore, photographs are automatically treated as a kind of goods that is automatically expressive:
"only certain items-'paintings, photographs, prints and sculptures' -automatically trigger First Amendment review because the sale or dissemination of these items ' always communicate[s] some idea or concept' to viewers"
(See MASTROVINCENZO v. THE CITY OF NEW YORK)
There are many ways to express something and not all are acceptable in all circumstances.
I don't think it's a simplistic "black and white... all or nothing" issue.
Funny, isn't it, that when we hear all the commotion about "rights," there's never a peep about "responsibilities." Maybe it's too hard to spell -- or maybe the concept isn't as appealing. Too many folks are concerned about what they can get, rather than what they can give.
Maybe the people who believe that, when a photo is taken of them, it steals a piece of their soul aren't too far off the mark.
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