Law on photography update

[cyrus]

Cyrus... For the 10th time, I understand what you are saying. I just think you are being an alarmist and I do not share your fear that we are going to become some sort of police state where normal photography is forbidden.

You also keep confusing the ideas of laws and rights. If you do have a law degree as you have indicated, I am really surprised by that.

Ummm...where to begin.

First, this isn't "alarmism". As I said the Porat decision was the result from ONE circuit out of 13 and is still, as best as I can tell, not a majority view. But the reasoning it employed is quite valid, legally speaking, because it is based on a Suprme Court case called Texas v Johnson which defined protected speech as ONLY something meant to convey messages to audiences. So there's no reason to assume that other circuits won't follow the same reasoning and reach the same conclusion as Porat.

Second, photographers get hassled by the police on a regular basis. This is a normal situation especially here in NYC. About once or twice a month there's some new news story about a cop hassling a photographer. So you see, we don't have to turn into North Korean police state for this to ALREADY be a problem. However, until the Porat decision, it USED TO BE safe to assume that the photographer had a constitutionally protected right to take photos and so the cops were out of line - but that's NOT the case any more.

So tomorrow if you're out taking photos, just because you enjoy taking photos and for no other reason , and a cop tells you to stop, you have no right to refuse, and you have no valid reason to challenge his command in court.

[BrianShaw]

So tomorrow if you're out taking photos, just because you enjoy taking photos and for no other reason , and a cop tells you to stop, you have no right to refuse, and you have no valid reason to challenge his command in court.

So what is the law or statute against which I would be arrested... or would it be "failure to obey a law enforcement officers demand".

[QT Luong]

So tomorrow if you're out taking photos, just because you enjoy taking photos and for no other reason , and a cop tells you to stop, you have no right to refuse, and you have no valid reason to challenge his command in court.

What right has a cop to tell you to stop an activity that doesn't break any laws ?

[cyrus]

"He effectively disclaims any communicative property of his photography as well as any intended audience by describing himself as a "photo hobbyist," (Compl. ¶ 16), and alleging that the photographs were only intended for "aesthetic and recreational" purposes. (Compl., ¶ 26)"

This just sounds so absurd to me that I don't think this could be defended if challenged.

Consider the following facts:
- Photography is an art. All works of art are meant to communicate something.
- Making a living of your art or even being paid for it is not a requirement for being an artist.

I am wondering how that case would have turned if instead of using the word "hobbyist", he would have used "artist" ?

In my experience, guards are more likely to let you go or continue to photograph if you tell them that you are *not* a professional, don't plan to publish, etc.. But in this case, which, unlike a myriad of similar ones, went to court, saying that he was a hobbyist was eventually detrimental. Quite a curious reversal.

Very astute observations QT.

The trial court decision here was in fact challenged when it was appealed. The 2nd Circuit Court of Appeals agreed with the trial judge. The Court of Appeals didn't bother explaining precisely why - they just said they agreed with the trial judge's memorandum and order and that's that.

And you are right that that trial court seems to have jumped to all sorts of conclusions based on the single word "hobbyist" being used in the complaint.

And you are also right that by describing yourself as something other than a hobbyist, you risk classifying yourself as a "professional" which would then subject you to additional restrictions.

In my expert legal opinion THIS SUCKS BALLS.

I agree with you about the inherent communicative capability of art. The problem is that the Supreme Court in Texas v Johnson defined protected expression so narrowly as to require an "intent to convey a particularized message to an audience which has great liklihood of being understood". What the heck was Jackson Pollak specifically intending to convey, and to whom? How does art fit into the Texas v Johnson definition of protected expression? These are the bigger questions raised by all of this.

[cyrus]

So what is the law or statute against which I would be arrested... or would it be "failure to obey a law enforcement officers demand".

What right has a cop to tell you to stop an activity that doesn't break any laws ?

Because for example in the cop's totally discretionary opinion, you're creating a hinderance to traffic or creating a "disturbance" or loitering or whatever. He can pretty much raise any/all of those, and no court will bother to second-guess him, not if casual hobbyist photography is not constitutionally protected.

Let me put it this way: If casual, recreational, "non-communicative" photography is not considered to be protected expression (which is what the Porat case decided) then it is "mere conduct" that can be easily regulated or outright banned. It would be no different than other forms of "mere conduct" such as chopping wood, flying a kite or tossing a ball or play hackeysack.

So imaging if tomorrow some guy decided to go onto a public sidewalk and fly a kite, chop some wood, twirl a baton, or toss a ball just because he enjoys doing that (and not as part of some sort of demonstration or play or act which would all be "communicative") Would you think twice about the authority of the police to tell them to cut it out? Of course not. There is no constitutional right to twirl a baton or toss a ball or do any of those things in public. They can all potentially create a hazard or interfere with traffic or whatever. Even if the guy in question decides to pursue the matter and file a law suit, he would have no basis for a complaint since no "right" of his has been violated, and also no judge is going to tell the police that they were wrong in preventing the guy from doing those things. See, courts and judges don't second-guess cops when it comes to controlling traffic flows etc. and certainly won't do so if there is no larger constitutional issue at stake.

Well, same goes for non-communicative photography.

In short, what used to be considered a Constitutionally-protected act, becomes merely something that the cops can choose to tolerate, at their own discretion.

[BrianShaw]

Because for example in the cop's totally discretionary opinion, you're creating a hinderance to traffic or creating a "disturbance" or loitering or whatever. He can pretty much raise any/all of those, and no court will bother to second-guess him, not if casual hobbyist photography is not constitutionally protected.

Well, maybe. But my understanding is that these kind of "trumped up" charges would generally get resolved before court. My understanding is that a District Attorney must essentially agree to prosecute. I've always thought of that as a citizen's "safety net" against false prosecution. I've always been led to believe that law enforcement officers understand/resepect/fear this somewhat contentious relationship and try to avoid conflict between them, their boss and the DA. All of this is before court and the oportunity to be concerned about communicative vs non-communicative. Have I been mislead or can I be arrested for wearing green socks while taking pictures and convicted of being non-communicative?

[QT Luong]

> What the heck was Jackson Pollak specifically intending to convey, and to whom?

That's where artists statements can have some use :-)

> Because for example in the cop's totally discretionary opinion

I don't think we've (yet) reach the point where cops can unreasonably dictate what you can and cannot do on the streets

BTW, when talking with authorities, I always describe myself as an artist. Vague enough to make them happy, but yet true at the same time, although I am a full-time photographer. Apparently this could also be useful in courts.

[BrianShaw]

p.s. Cyrus, If it wouldn't be rude or too personal... would you mind saying what your legal specialty is?

[BrianShaw]

Maybe we can establish a foundation for communicative photography, and issue credentials. Also, maybe we can have an associated web site or journal to publish for an audience.

Since nobody else is stepping up to the plate, I might go it alone and get this started. In addition to credentials and an audience, my Foundation for the Communicative Arts will be offering a complimentary artists statement to charter members!

[BrianShaw]

I don't think we've (yet) reach the point where cops can unreasonably dictate what you can and cannot do on the streets

... when it does not violate a law. (Actually, my experience with cops is that they can say whatever they want, but cannot really enforce made-up nonsense.)