Law on photography update

[cyrus]

I haven't read this entire thread but I've skimmed a little and some of you are going way overboard. For example:

"According to recent case law, if you're taking the photo purely as a hobbyist and for your own recreational purposes, it is NOT expressive conduct, and is therefore NOT protected by the Constitution, because you're not communicating a particular message to an audience. You're just doing it for your own enjoyment. Thus, governments are perfectly free to outright ban you from taking photos or impose other highly onerous restrictions on you. (emphasis added)

The First Amendment isn't the only legal protection against unreasonable restrictions on your right to pursue health and happiness. Relax.

I would be interested in whatever other such protection of free speech you may be referring to, which amount to a legal right that can be asserted in court.

[cyrus]

No QT... I was being a dick when I typed that.

LOL!

[cyrus]

Fourteenth Amendment to US Constitution

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Excerpt from US Vs O'Brien:

We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling;[22] substantial;[23] subordinating;[24] 377*377 paramount;[25] cogent;[26] strong.[27] Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (emphasis added) We find that the 1965 Amendment to § 12 (b) (3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for

Thomas

Not sure what your point is in quoting this from O'Brien since it has no bearing on the point at issue. O'Brien was about whether the government can impose reasonable time, place, manner restrictions on the exercise of a constitutional right - expressive conduct (in his particular case, he burnt his draft card as a way of expressing opposition to the Vietnam war.) In our situation, since non-communicative photography is not expressive, it is not a constitutional right, and the O'Brein decision is irrelevant.

If you're interested, here's how THAT unrelated issue plays out:
In Texas v Johnson, the Court ruled that conduct can be expressive, and therefore can be protected as a form of free speech.

In Obrien the Court ruled that free expression does not mean you get to express yourself anywhere and in any way you want - rather the government can impose reasonable time, place, manner limits on your right to free expression, as long as these restrictions are "reasonable" and are not intended to censor you.

So for example, you have a right to engage in a parade or demonstration because that is expressive conduct. However, that doesn't mean you can do so whenver and whereever you want. No, the government has the legal power to impose some limits - by requiring you to obtain a permit, and to demonstrate at specific times and in specific places in the city. The courts are OK with this, as long as thes rules are reasonable, "furthers an important or substantial governmental interest" (such as minimizing traffic problems) and the permit process is not being used to favor some forms of expression over others (in other words, Republicans get permits but not Democrats.)

None of this has any bearing on Porat though since that was a case that did not invovle any expression (or so the court said.)

[cyrus]

Being hypothetical for a while:

I think we can all agree that if I hold my camera up to my eye and look through the viewfinder but don't press the shutter then I'm not taking a picture.

Therefore the difference between not taking a picture and taking a picture is pressing a little button down by about 1/4".

I don't really see how that is a cause for concern for any police officer.

Likewise, how would he know if I had film in my camera? I might just like looking through the viewfinder whilst listening to the sound of the shutter!


Steve.

The cop could say the very act of you standing still whilst doing this is hindering the movement of people on a sidewalk and is therefore causing a disturbance. For example.

[cyrus]

Perhaps he can in your world but he can't where I live.


Steve.

The Isle of Wright? LOL Do you actually have any policemen there? I mean apart from all the prisons there

[Steve Smith]

Steve, in the real world (mine) and in the immediate situation of being confronted by an opinionated and/or armed cop... the details really don't matter.

In my world, the police are not armed. I agree that an officer can overstep his authority and stop people from photographing in public. There have been a few cases of that here in the UK but in every single case I have read about, no photographer has been charged with any crime. In fact, in all cases, the police have issued an apology and it has also lead the Metropolitan police to issue common sense guidelines to their officers.

The Isle of Wright? LOL Do you actually have any policemen there? I mean apart from all the prisons there

There are a couple (not that we need them).

The cop could say the very act of you standing still whilst doing this is hindering the movement of people on a sidewalk and is therefore causing a disturbance. For example.

He could say it... but he would be wrong (and he would say pavement, not sidewalk). I would love to have the opportunity to defend myself in court on a charge of just standing there doing nothing!


Steve.

[cyrus]

defend myself in court on a charge of just standing there doing nothing!


Steve.

You just admitted to the "crime" of loitering.

COP: You standing there, what are you doing!?

DEFENDANT: Nothing!

COP: Here's your ticket.

[tgtaylor]

I beg to differ.

If, for purposes of enjoyment of a legal right, you are separating a class in two different entities, as you appear to be doing, for entitlement to that right namely the photographic "hobbyists" who seeks nothing more than personal edification and gratification, and the "communicative" photographer who seeks to "communicate" an idea or opinion, then the due process and equal protection clause of the 14th Amendment would have a very strong and decisive bearing on the issue. The separation of a class into two different classes for purpose of entitlement would be legal under the 14th Amendment if, and only if, there exists a compelling public interest supporting such a sub-classification. I can see no compelling public interest being served by classifying photographers as hobbyists or communicative for purposes of free speech protection. Can you?

Please Thomas, don't assert legal matters that you don't have sufficient background in, there's enough BS on this board. FYI the 14th amendment equal protection clause bars discrimination on the basis of RECOGNIZED SUSPECT classes - on the basis of race, national origin, gender, etc. -- not on the basis of whether you're a photographer who takes communicative or non-communicative photos. And in any case I am not the one making this distinction - the court in Porat made this distinction, and the 2nd highest court in the US agreed with them.

Fourteenth Amendment to US Constitution

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Poor Cyrus, he just can't see it. Well, a lot of other attorneys can't either. Can you?

Thomas

[Steve Smith]

You just admitted to the "crime" of loitering

I did not. The crime is loitering with intent. Loitering on its own is o.k. The officer would have to prove intent.

http://en.wikipedia.org/wiki/Intention_in_English_law

Anyway, I left my tent at home.

nor deny to any person within its jurisdiction the equal protection of the laws.

I assume that bit applies to me if I visit your country.


Steve.

[cyrus]

Poor Cyrus, he just can't see it. Well, a lot of other attorneys can't either. Can you?

Thomas

I enjoy your random bits of direct quotations from here and there, without any explanation on how it would be relevant to the issue under discussion.