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Thread: Law on photography update

  1. #121

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    Re: Law on photography update

    Quote Originally Posted by cyrus View Post
    You don't consider the fact that you don't actually have a "right" to photography in a public place to be of any practical relevance? Your choice.
    Let's list all the other things you don't have a "right" to do in public... speak, blink, eat food, walk, cry, chew gum, laugh.

    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.

  2. #122

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    Re: Law on photography update

    Quote Originally Posted by John NYC View Post
    Yes it is.

    No, you never had that right.

    No, you are wrong. 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.

    If you see my name, you'll know I live in NYC. If you saw other posts about getting harassed, you will see I have been harassed. I understand the situation, and it is not anywhere near as dire as you think it is.
    I do enjoy your absolutist statements made up out of nowhere.

  3. #123

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    Re: Law on photography update

    Quote Originally Posted by John NYC View Post
    Let's list all the other things you don't have a "right" to do in public... speak, blink, eat food, walk, cry, chew gum, laugh.

    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.
    Well then you agree with the Porat reasoning.

    The argument is that photography is a form of EXPRESSION, and like other forms of expression is protected by the first amendment. It isn't like chewing gum and shouldn't be treated as such.

    PS: You most certainly do have a right to speak, laugh and cry in public. What can be more expressive than that? And a cop cannot simply tell you to cut it out.

  4. #124

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    Re: Law on photography update

    Quote Originally Posted by cyrus View Post

    PS: You most certainly do have a right to speak, laugh and cry in public. What can be more expressive than that? And a cop cannot simply tell you to cut it out.
    Only in some circumstances if you take your interpretation of the Porat case.

  5. #125

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    Re: Law on photography update

    Quote Originally Posted by cyrus View Post
    PS: You most certainly do have a right to speak, laugh and cry in public. What can be more expressive than that? And a cop cannot simply tell you to cut it out.
    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.

  6. #126

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    Re: Law on photography update

    Quote Originally Posted by cyrus View Post

    PS: You most certainly do have a right to speak, laugh and cry in public. What can be more expressive than that? And a cop cannot simply tell you to cut it out.
    Let's take the case and substitute laughing instead of photographing, since you seem to think we have a constitutional right covered by the first amendment which means we are protected in our laughing.

    1. We trespass all the while laughing.
    2. We are told we cannot laugh here on this property we are standing on and that we are trespassing.
    3. We refuse to stop laughing and refuse to leave and therefore we are arrested.
    4. No one shows up to prosecute us.
    5. We file the exact same claims Porat filed.

    How do you think the court would rule regarding our first amendment rights being violated?
    Last edited by John NYC; 19-Oct-2011 at 16:23. Reason: removed a clause for clarity

  7. #127
    Founder QT Luong's Avatar
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    Re: Law on photography update

    > Because there is no law against photography.

    Right. I think those references to the right to photograph and its constitutional protection are relevant only when this right interferes with other rights, for instance rights to privacy.

  8. #128

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    Re: Law on photography update

    When I was in law school years ago, the Texas Flag burning case had just come out. On the Constitutional Law final, we had a hypothetical about a man arrested for wrapping himself in a flag (in violation of the Texas statute), not for purposes of any expression, but because he was cold.

    This entire discussion reminds me of a law school final.

  9. #129

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    Re: Law on photography update

    Quote Originally Posted by John NYC View Post
    Let's take the case and substitute laughing instead of photographing, since you seem to think we have a constitutional right covered by the first amendment which means we are protected in our laughing.

    1. We trespass all the while laughing.
    2. We are told we cannot laugh here on this property we are standing on and that we are trespassing.
    3. We refuse to stop laughing and refuse to leave and therefore we are arrested.
    4. No one shows up to prosecute us.
    5. We file the exact same claims Porat filed.

    How do you think the court would rule regarding our first amendment rights being violated?
    John, I have no idea how often I have to tell you this: the trespass issue is totally irrelevant. I have pointed out a law review article and an article from New Jersey Lawyer. They all discuss Porat thoroughly so it isn't my opinion. It is the law.

  10. #130

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    Re: Law on photography update

    Quote Originally Posted by John NYC View Post
    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.

    They don't have to "make up" anything and there doesn't have to be a specific law against photography. If you're engaged in "non-communicative photography," they can stop you from taking photos for the same reason they can stop you from playing hackey sack. There's no specific law on the books banning hackey sack in public either but since it is nonexpressive conduct, it is not subject to First Amendment protection, just as (according to Porat) recreational photography is also not protected by the First Amendment.

    OK Let me explain it yet again:
    Johnson burnt the US flag as his way of expressing opposition to the war in Vietnam. The prosecution said that since he was engaged in CONDUCT rather than speech, he could be prosecuted for desecrating the flag, and there would be no concern with the First Amendment. The Supreme Court said that sometimes CONDUCT is meant to be EXPRESSIVE, and therefore would be protected by the First Amendment. However, NON-EXPRESSIVE conduct is still not protected by the First Amendment. How did they make a distinction between expressive and non-expressive conduct? They said that conduct is expressive if it is intended to communicate a message to an audience. Since Johnson was burning the flag as his way to communicate his displeasure about the war to observers, then he was engaged in expressive conduct.

    So now we come to the Porat case. Porat was taking photos of a building, purely for his own enjoyment and as a self-described hobbyist. Whether he was trespassing or not is totally irrelevant because not only were the trespassing charges dropped, but it wasn't even an issue in the court's sweeping statement that as a hobbyist photographer, he wasn't intending to communicate anything to an audience and was just taking photos for his own pleasure, and so he did not have any First Amendment right of which he could have been deprived. Whether he was trespassing or not was irrelevant - he didn't have a first Amendment right to take photos, because he wasn't intending to communicate a message to anyone. And so when the police interfered with his photography, whether legitimately or not, he had no reason to complain, because he wasn't being deprived of any "right" when they prevented him from taking photos. So for the umpteenth time, his alleged trespassing was not an issue. The problem was that he was characterised as a "hobbyist" and not a "communicative" photographer.

    Thus far, it isn't very complicated is it.

    So now you're saying that even if you don't have a constitutional right to take photos, the police still cannot prevent you from taking photos of a public place if there is no specific law that prohibits public place photography. And to that I respond - yet again - thus: There doesn't have to be any specific law that bans photography in public, just as there is no specific law that bans playing hackey sack. or twirling a baton or tossing a ball or chopping wood on a sidewalk. The existing generic laws against "causing disturbance", interfering with traffic, disorderly conduct, vagrancy etc. laws are plenty good enough to empower to police to prevent you from taking public photos, if the police decide to use them, and you would have exactly a snow balls chance in hell of ever getting a court to second-guess the police on that point because there would be no constitutional issues involved in them using such laws - legitimately or not - to prevent you from engaging in public photography for your own enjoyment.

    Then you say this is a non-issue because the police would never do that, and this really isn't a such a big problem. To which I respond that EVEN TODAY, every week or so there are news reports about police getting in the face of photographers. For example take the case of Arun Witta. Here's a guy taking photos of public places, from public places, and the police got in his face. In fact, note that even according to the Porat decision, he was engaged in "communicative" photography and therefore protected by the First Amendment (he was going to use his photos for the communication of ideas to others - he was working on some art project about subways - and not taking photos for his own pure enjoyment) and the police STILL got in his face for non-justifiable reasons. So what makes you so sure that the police will leave you alone when you're engaged in NON-constitutionally protected hobbyist photography for your own enjoyment?

    I just can't say it more clearer than that.

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