Law on photography update

[cyrus]

Apologies for raising your hackles. By "obscure" I simply meant that it isn't a situation that seems to have been tried over-and-over-and-over again. I meant that it seems like a leading-edge kind of ruling that may not have been fully tested. I wasn't questioning that the 2nd Circuit Court of Appeals is not a real or meaningful court.

No, you're not raising my hackles at all.
I enjoy this which is why I'm here.

There are several other cases that have applied the same conclusions as Porat that non-communicative public photography is not free speech. So it isn't obscure.

Also it doesn't have to be tried over and over to be the law. In fact, in saying that "non-communicative photography is not protected by the First Amendment" the court is simply logically applying established free speech law as it exists, to photography. If that was the only issue, there would be no controversy.

[paulr]

I don't understand why everyone's jumping on Cyrus on this issue. He's making a significant point. It's not something that's likely to matter to us in the immediate future or even much of the time, but it has rammifcations, not only concerning how current laws are interpreted, but also concerning what new laws might be passed.

Considering that we're in an era when people at all levels in both the private and public sectors are eager to clamp down on liberties in the name of security, we need to be aware of what protections, if any, we can fall back on.

The 1st ammendment has always been a great anchor for our rights to photograph in public spaces, but if case law is erroding its reach, and doing so in bizarre ways, we should pay a bit of attention.

I would really like the ACLU to have an opportunity to argue this in front of a high court. From what little I've read, these interpretations of the law concerning "communication" and "message" and intended meaning are rooted in pre-20th century understandings of communication in general, and photographic hermaneutics in particular. They're based on simplistic fantasy versions of how photography communicates, and this is a dangerous condition. Annoying for artists, but dangerous for the public (consider all the amateur, "naive" photographs and videos that have retroactively proven valuable for journalistic purposes).

I don't think any of this will effect my own work any time soon, but I'm concerned about it from the standpoint of civil liberties in general.

[tgtaylor]

Thomas if that was your point I do wish you'd have just said it instead of quoting random bits and pieces of everything from the Declarations of the Rights of Man to the 14th Amendment.

What do you want me to do, write the Complaint and Brief too?

If I was an attorney bringing an action on behalf of "non-communicative photography" before the courts, I'd argue it on both 1st and 14th Amendment grounds if not others as well and yes I would trace and set-out the origins of my claimed rights in every document in which they appear to rub the courts nose into it so to speak.

It should be noted that society consists of competing groups some of which do not want the law interpreted and applied as it is written. For example consider opening phrase in Section 1 of the 14th Amendment “All persons born or naturalized in the United States and subject to the jurisdiction thereof...”As you have pointed out the “All persons” has been interpreted by case law to mean not “all persons” at all but only “...RECOGNIZED SUSPECT classes-on the basis of...” and that list keeps growing with the passage of time. In other words there are those who do not want the protections of the 14th Amendment to be applied equally to “all persons” as it is written and have hired attorneys and found judges that have ruled that “all persons” is not really “all persons at all but something less than that. It's analogous to someone telling you that the dinner table that you and your family sit down to dinner at is not really a table at all but is instead a chair; or that the earth really isn't a sphere but instead is flat. The seperation of photographers into "communicative" and "non-communicative" grouping is just another example of a competing group in society not wanting photography to be afforded constitutional protection for all photographers only some and those, no doubt, to their liking.

Thomas

[cyrus]

What would be written on the (whatever the document is called) specifying what we'd be arrested and tried for - "photographing without intent to communicate"; "engaging in communicative photography but without an audience"; "engaging in communicative photography but with an audience but no real or meaningful message"?

Please be consise, succinct and specific!

No, the citation would be for "distubring the peace" for example. You would get the same "disturbing the peace" citiation if you were chopping wood on a sidewalk or engaged in any other sort of act that the cop thought was disturbing (and like I said the courts won't second-guess him on that point.)

See, like I explained to JohnNYC in a previous post, there doesn't have to be a law that specifically bars "disturbing photography" - just a general vague law suffices. Whether it is because you're balancing turtles on your head whilst riding a unicycle backwards, or chopping wood, or taking non-communicative photographs - doesn't matter. The broader POINT is that once you agree that non-communicative photogoraphy is "merely conduct" rather than 'expressive conduct' - it can be regulated just like any other form of non-expressive conduct such as chopping wood.

On the other hand, if you're engaged in communicative conduct, that 's not the case. It would not matter if you're being "disturbing" or not - you would have a First Amendment protected right to engage in communicative conduct even if it is disturbing (in New York for example you have a right to be nude in public if you're engaged in a play or act or performance) The worst that the police can do in THAT case would be to require you to have a permit so as to minimize the disturbance, but they can't prevent you from engaging in the expressive conduct.

[Steve Smith]

Even if you're in a totally and completely public place, you have no right to take non-communicative photos. Thats the point being discussed here.

You do effectively have that right because nobody has the right to prevent you doing it.


Steve.

[Steve Smith]

No, the citation would be for "distubring the peace".

And how would this be proven? Bearing in mind the fact that I am innocent until proven guilty.

I think you're clutching at straws now. There is no law banning photography in a public place. In your country it might or might not be protected by one or more amendments, in mine it isn't. That doesn't suddenly make it illegal.

Just moving a small box up to your face and pressing a button doesn't constitute 'disturbing the peace' any more than moving a carton of drink up to your mouth does (with or without digesticative intent!).

Whatever goes on inside that magic box is irrelevant, it is your actions with respect to other people and their property which might or might not attract the attention of the police.


Steve.

[John NYC]

It wouldn't be "false arrest" if you're refusing a lawful order

Oh, like your loitering example from earlier? Not lawful, Cyrus. Not in New York City. You conveniently never addressed my earlier question about which city you were talking about.

Go ahead retort again with another non-sequitur or oblique point irrelevant to all but totally dishonest cops and judges.

It's been fun, but you seem to be someone who has some weird agenda about this. You have given me nothing in this discussion that is useful to me, and, frankly, you are going on my ignore list now.

[cyrus]

You do effectively have that right because nobody has the right to prevent you doing it.


Steve.

Yes and they already do. See, if the cops decided that public photography is "disturbing," for example, then you're "disturbing the peace" by doing so. They would be quite entitled to prevent you from doing it - just as much as they are entitled to prevent you from chopping wood in public.

AND since cops already bother photographers regularly, this isn't an unlikely circumstance nor is it something that can only be potentially threatening in the far future. No, this is an issue for every "hobbyist" photographer today who has a run in with the cops - and that's more than a few people.

[cyrus]

Oh, like your loitering example from earlier? Not lawful, Cyrus. Not in New York City. You conveniently never addressed my earlier question about which city you were talking about.

Go ahead retort again with another non-sequitur or oblique point irrelevant to all but totally dishonest cops and judges.

It's been fun, but you seem to be someone who has some weird agenda about this. You have given me nothing in this discussion that is useful to me, and, frankly, you are going on my ignore list now.

New York City is not the whole of the US and I am not about to explain the details of the various laws of 50 thousand different cities to you.

Suffice it to say that if you're standing around in public doing nothing, yes, you can potentially be liable for "loitering".

Black's Law Dictionary:
Loitering, n. The criminal offense of remaining in a certain place (such as a public street) for no apparent reason.

[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.

For anyone jumping into this discussion late, as i said earlier, this above is probably the only post you really need to read. It is perfect summation of what the ramifications are.