Law on photography update

[cyrus]

As some of you know I've been involved in getting a lawsuit filed involving the right to take photos in a public place.

I thought I should update you all on this point: we are all used to hearing the statement that photography is a First Amendment protected right. This is a statement that is widely distributed in various "photo rights" discussions.

No so.

There are several cases that state that only "communicative" photography is protected by the First Amendment - meaning photographs that are intended to communicated a specific, identifiable message to an audience. Photographs taken by someone for their own personal enjoyment are NOT "communicative" and would therefore NOT be protected by the First Amendment, according to these (recent) cases. So in other words, no, you don't have a right to take a photo, even from a public place, unless you can also specify what particular message that photo contains, and to whom you will be communicating that message.

So, for example, if you're visiting NYC and want to take a photo of the Brooklyn Bridge for your own interest, you don't necessarily have a right to do that. If you wanted to take a photo of your spouse, just because you wanted to have a photo of your spouse, you don't necessarily havea right to do that either. You would only have a legal right to take these photos if you intended to communicate some message about the bridge or your spouse, to OTHER people.
Of course this is a silly distinction between "communicative" vs "non-communicative photography" - this would mean that, for example, writing in a diary is not protected by the First Amendment because you don't intend to allow others to read your diary entries (no audience.) But nonetheless, these cases are on the books.

I mentioned this potential interpretation of a case, in a posting I made on this forum in Sept 2007 (which degraded into a name calling match.) At the time there was some skepticism that I was reading the case correctly - the case could have been read to simply prohibit access to a private function, and not prohibit non-communicative photography in general. Since then other cases have been decided, holding that photography per se is not a First Amendment protected right, but only "communicative" photography is protected.

So in other words while displaying or selling photography is protected by the First Amendment, taking photos is not necessarily protected, if it is done purely for your own recreational interest.

See for example Porat v. Lincoln Towers Cnty. Ass’n, No. 04-3199
http://scholar.google.com/scholar_case?case=15793672746972608587&hl=en&as_sdt=2&as_vis=1&oi=scholarr

In that case an NYC photographer was taking photos of some buildings while on the property of the building. The security guard had him cited for trespassing. The court decision, however, went well beyond the proposition that you can't trespass to take photos. It also said that recreational photography is not a First Amendment right. So in otherwords, the photographer, because he described himself merely as a "hobbyist", would not have had a right to take photos, even if he wasn't trespassing, because he didn't intend to sell or show his photos.


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) Although Plaintiff cites a number of cases that protect photography under the First Amendment, each of these cases is distinguishable in that the "speaker" intended to communicate a message to an audience, an intent that is not alleged here....

These cases all concerned protected First Amendment conduct not because the plaintiffs used cameras, but because the cameras were used as a means of engaging in protected expressive conduct. They do not, as Plaintiff suggests, stand for the proposition that the taking of photographs, without more, is protected by the First Amendment. Again, this newly-created distiction between 'recreational, non-communicative' photography and other forms of photography, this is a HUGE loophole in the idea that photography is a First Amendment right.

[Steve Smith]

I don't know what a first amendment right is (being English) but if there is no specific law banning photography then it must be o.k. to do it.


Steve.

[Brian C. Miller]

I don't know what a first amendment right is (being English) but if there is no specific law banning photography then it must be o.k. to do it.

From The Bill of Rights: A Transcription (http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html):
Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The U.S. Constitution has a number of amendments, and the first ten being contained in the Bill of Rights. The issue in the U.S. is how much coverage does the First Amendment provide to its citizens. The answer seems to be, not much at all if you're just a guy on the street. Therefore, the answer for me is to start your own news service.

[DarkroomDan]

From The Bill of Rights: A Transcription (http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html):

... Therefore, the answer for me is to start your own news service.

Publish it in your blog.

[cyrus]

Interesting observation Steve. As the UK does not have a single, written Constitution like the US does, let me explain it a bit: there are laws that prohibit photography being enacted, and the question is whether these laws are valid

The First Amendment of the US Constitution -- the highest law of the land which all other laws and government actions must abide -- declares that there is a thing called the freedom of expression. What the precise meaning and application this is, is open to dispute.

In a case a few years ago, a fellow in Texas burned the US flag as his way of expressing his opposition to the Vietnam war. The US Supreme Court - the highest court in the US - said (http://en.wikipedia.org/wiki/Texas_v._Johnson) that conduct can constitute a form of expression. Therefore the conduct or act of burning a flag can be a legally protected form of expression, and therefore laws that prohibited flag burning were invalid. However, non-expressive conduct would not be protected. Throwing a ball or chopping wood, for example, are non-expressive forms of conduct which are not protected by the COnstitution. Similarly, burning the flag just for kicks (as opposed to doing so in order to convey a message) would not be protected.

The distinction between expressive and non-expressive conduct is, according to the court, in whether the conduct in question contains "an intent to convey a particularized message... and [whether] the likelihood was great that the message would be understood by those who viewed it."

In other words, conduct (such as flag burning) can be protected by the Constitution as a form of expression, IF the conduct was 1- intended to convey 2-a particular message 3- which would be understood as such by 4- an audience. So in short, for conduct to be protected as a form of expression, it has to contain a message communicated to an audience.

So now we come to the problem of taking a photograph (note that we're not talking about selling or displaying photos here - just the act of setting up your camera and pressing the shutter release button.) Is TAKING a photo an ordinary form of "conduct," like chopping wood or throwing a ball or is it "expressive conduct"?

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.

And that sucks for a vareity of reasons. Do you enjoy writing poetry? Unless you intended to have your poetry read by others, you don't have a right to do that, and the government can theoretically throw you in jail for writing poetry for your own enjoyment. Do you enjoy taking photos of your children for your own enjoyment, even though your photos don't contain a particular message, and you don't intend to show an audience? Guess what....

[Ed Kelsey]

Burn all the Bibles !

[cyrus]

Publish it in your blog.

But that means only photos that you intend to publish on a blog are legally protected. Anyway, to be protected the photo must also convey a "particularized message". This assumes that every photo is intended to contain a particularized message. Can you identify the particularized message in Moon Over Hernandez that Adams no doubt must have intended to convey? I sure can't. (note that the court said aesthetics wasn't good enough so "wow what a pretty moon" would not be enough reason.)

[Ivan J. Eberle]

This case law hardly seems like the final word on the matter.

The fellow was merely cited for trespassing once a cop showed up. Released on the citation, he apparently had that ticket kicked when no one for the prosecution showed up in court. He next turned around and sued for false arrest and malicious prosecution-- and this seems to be the suit in which he did not prevail.

Doesn't exactly seem like any big precedent-setting case from where I sit--is there something more too this?

[Steve Smith]

The U.S. Constitution has a number of amendments

Is there anything to stop the US having any more amendments? And can an amendment reverse anything in the previous amendments?


The fellow was merely cited for trespassing once a cop showed up.?

There is a difference here between US and English law. In England, trespass is a civil rather than a criminal offence and the police have no power to make you leave an area you are trespassing in. It is up to the land owner to obtain a court order.

A land owner may use reasonable force to remove a person but only if he has reason to believe that the person is likely to damage property or harm another person.

The police tend to use public order law to remove troublesome trespassers but you can only be cautioned for a public order offence, not arrested.

It is common to here to see signs stating "Trespassers will be prosecuted". The reality is that they cannot be prosecuted as they have not committed a criminal offence.


Steve.

[Dan Fromm]

Is there anything to stop the US having any more amendments? And can an amendment reverse anything in the previous amendments?


Steve.There's nothing to stop us from passing more but the difficulty of passing 'em.

And we have repealed one, the 19th Amendment, which prohibited the sale of alcoholic beverages. What it did in fact was provide a protective tariff in favor of organized crime ("The Mafia"), just as our current laws (not a constitutional amendment) that ban use of controlled substances (dope of all kinds but model airplane) protect the drug trade.

[Bob Salomon]

"Is there anything to stop the US having any more amendments?"

No

"And can an amendment reverse anything in the previous amendments?"

Already has been done. It was called Prohibition and that was later repealed after 15 years or so.

[cyrus]

This case law hardly seems like the final word on the matter.

The fellow was merely cited for trespassing once a cop showed up. Released on the citation, he apparently had that ticket kicked when no one for the prosecution showed up in court. He next turned around and sued for false arrest and malicious prosecution-- and this seems to be the suit in which he did not prevail.

Doesn't exactly seem like any big precedent-setting case from where I sit--is there something more too this?

The judge's statements about the lack of First Amendment protection applied regardless of the point about trespass etc. So in other words even if there was no trespass, according to this decision, there was no first amendment protection.

It is not a well-etablished precendent yet however imagine this: photographers are constantly harrassed for taking photos of even public places. This is true in NYC as well as anywhere else and there were a number of lawsuits (http://secondavenuesagas.com/2010/02/10/unlawfuly-arrest-for-subway-photography-costs-city-30k/)
However according to the reasoning employed in this case, they don't have a cause of action if they're just recreational, hobbyist photographers.
A UoP law review article (http://lsr.nellco.org/cgi/viewcontent.cgi?article=1316&context=upenn_wps&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26source%3Dweb%26cd%3D4%26ved%3D0CDIQFjAD%26url%3Dhttp%253A%252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1316%2526context%253Dupenn_wps%26rct%3Dj%26q%3D%2522non-communicative%2520photography%2522%26ei%3Dvn6cTu2mHcfK0AGHzJSeBA%26usg%3DAFQjCNGBAW20W_bi86yhR1NmKUSrnApjrw#search=%22non-communicative%20photography%22)addresses this issue on p 375 see the footnote for other cases

The Porat case was upheld on appeal to the 2nd Circuit

[Bob Salomon]

The judge's statements about the lack of First Amendment protection applied regardless of the point about trespass etc. So in other words even if there was no trespass, according to this decision, there was no first amendment protection.

It is not a well-etablished precendent yet however imagine this: photographers are constantly harrassed for taking photos of even public places. This is true in NYC as well as anywhere else and there were a number of lawsuits (http://secondavenuesagas.com/2010/02/10/unlawfuly-arrest-for-subway-photography-costs-city-30k/)
However according to the reasoning employed in this case, they don't have a cause of action if they're just recreational, hobbyist photographers.
A UoP law review article (http://lsr.nellco.org/cgi/viewcontent.cgi?article=1316&context=upenn_wps&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26source%3Dweb%26cd%3D4%26ved%3D0CDIQFjAD%26url%3Dhttp%253A%252F%252Flsr.nellco.org%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1316%2526context%253Dupenn_wps%26rct%3Dj%26q%3D%2522non-communicative%2520photography%2522%26ei%3Dvn6cTu2mHcfK0AGHzJSeBA%26usg%3DAFQjCNGBAW20W_bi86yhR1NmKUSrnApjrw#search=%22non-communicative%20photography%22)addresses this issue on p 375 see the footnote for other cases

The Porat case was upheld on appeal but on the technical question of whether/when a complaint can be amended, not the appellate decision did not address the communicative/non-communicative photography distinction introduced by the District court.

Are you citing a city court, superior court, appeals court, state court or federal court decision.

Seems if it was a trespassing matter it was a local judge's decision. Which isn't the greatest precedent for case law.

[cyrus]

Are you citing a city court, superior court, appeals court, state court or federal court decision.

Seems if it was a trespassing matter it was a local judge's decision. Which isn't the greatest precedent for case law.

The Porat case was a Federal case. The issue of trespass is irrelevant to the point (in fact while Porat was initially cited for trespassing, all the charges against him were dismissed. AFTER that, he turned around and sued the city and Lincoln Towers for violating his First Amendment right to take photos. The court held that because he was merely a hobbyist taking photos for recreational purposes, he did not HAVE a first amendment right to take photos. The issue of trespassing was not relevant.)

In reading the complaint, by the way, the treatment given to this photographer by the police and building security guards was absolutely indefensible. He's Israeli and speaks with an accent. According to the complaint, the NYPD asked him if he came from a "non-European country". When he said what differece that would make, he was told that that it would. Pure discrimination. Later he and a photographer from the New York Post went and stood on the public sidewalk and took photos of the Lincoln Towers buildings, and the NY Post photographer was actually physically attacked by the building security guards & told that they weren't allowed to take photos EVEN from a public place.

But again none of this is relevant to the issue. According to this judge in this case, the "Right to Photography" only applies to "communicative photography" - meaning photography that is intended to communicate a particular message to an audience. There is no such right to recreational photography for your own enjoyment. There's no reason why this line of thinking can't be extended to other art forms - no right to recreational painting, no right to recreational writing, etc. If you're doing these things for your own personal amusement rather that to communicate a particular message to someone else, you can be legally prohibited from doing so.

[Nathan Potter]

This is a colossal red herring. Virtually everyone in the US takes digital snapshots from public and private property and while we may all be ostensibly subject to arrest it ain't gonna happen. Legally it isn't going to happen selectively and still hold up to even lower court scrutiny. The proliferation of digital camera images mostly taken on private property simply establishes a new societal norm that would be impossible to enforce against.

Claims against intrusive LF setups are just easier to harass against because they have a more obvious potential for public disruption.

My most recent brush with the law was for "creating a public nuisance" by a busy roadside and intersection even though digital snapshooters were photographing the same scene and were unmolested.

I have never been cited for "failure to comply with US first amendment right". Don't ever expect to be so cited.

Just stay cool, pleasant, and acccept that you are an "Oddball" and you'll be fine.

Nate Potter, Austin TX

[cyrus]

Nate there is a bigger question at issue. You may not have been harassed but others were are are and will continue to be. Porat was not "unpleasant" to anyone either. Exercising your rights shuold not be a question of whether the police think you're "pleasant" or not. We don't live in a society where respect for basic rights is simply left up to the police to decide on their own discretion.

As for whether it is a red herring or not, apparently others have started to catch on about this. There is a very recent Rutgers Law Review articl (http://www.rutgerslawreview.com/wp-content/uploads/archive/vol63/Issue2/Garvey_Potvin.pdf)e recently published that declares the PATH photography permit rules to be unconstitutional.

[Bob Salomon]

...There is a very recent Rutgers Law Review articl (http://www.rutgerslawreview.com/wp-content/uploads/archive/vol63/Issue2/Garvey_Potvin.pdf)e recently published that declares the PATH photography permit rules to be unconstitutional.

I don't think that a Law Review can decide the constitutionality of something. With all of the law schools and law reviews in the USA there are probably others who feel differently. It is the courts who will decide, not a group of law students. Now it will depend on how well they can present their views in a court against other advocates.

[cyrus]

I don't think that a Law Review can decide the constitutionality of something. With all of the law schools and law reviews in the USA there are probably others who feel differently. It is the courts who will decide, not a group of law students. Now it will depend on how well they can present their views in a court against other advocates.

No one suggested that the law review "decides" anything. The point was that others also consider this to not be a 'red herring'. Other poeple - People other than me! - have looked into it and reached similar conclusions. So Im' not some sort of crazy lone crusader tilting at windmills.

[rdenney]

The blog (or web) posting objective seems relevant. No court would expect a bona fide photojournalist not to make many photos in the hopes of publishing one. It is the intent to make a photo for communicative purposes that seems relevant to me.

If I post a picture on my web page, I obviously intend to communicate that photo to others, whether or not I get paid to do so. If I make a print and display it, I obviously intend to communicate it to others. But that does not seem to me the basis for requiring every single exposure to meet that test (or even any of them--even members of the press have no control over what might actually be published). Many, many, many photographs made by hobbyists for purposes other than communication have nevertheless used their photos to communicate in an obvious journalistic sense. Zabruder is just one obvious example of a hobbyist whose photography became protected expression.

A lot of times, what photographers believe about their rights hinges not on rights they actually possess, but rather on the rights of the photographed (animate or inanimate). Given that what is being photographed has no right to privacy if photographed from a public place (with certain defined exceptions), then it seems to me vacuous to argue that the photographer has no right to make the photograph. If the photographer has no right to make photographs, then why waste all this time arguing about the rights of the subjects of those photographs?

That leads back to the notion that perhaps photographers have rights simply because what they do is not illegal (i.e., we are allowed to do anything that is not specifically illegal, which is not the case in some legal systems but is in ours). That would not preclude a jurisdiction from making it illegal, but for that to stand up (even without constitutional entanglements), there would have to be proper notification (meaning: lots of signs) and some semblance of uniform enforcement. Because it is obviously unenforceable to make photography in most public places illegal, someone arrested for making a photograph would stand a good chance of overturning it because of that, without needing the First Amendment to shield them. If Sheriff Roscoe rolls a 10mph speed limit sign out in front of the Duke boys, it is not enforceable as long as the case is appealed past Judge Hogg, even though operating a motor vehicle is not a right at all, let alone one protected by the constitution. Maybe that's why the laws limiting photography that have stood up seem to be related to tripods and being a nuisance (by blocking a sidewalk, etc.)

I wonder if the Porat decision was at least partly based not on the right of the photographer to make photographs, but his right to trespass as a matter of free expression. He sued for false arrest, when he was arrested for trespass. Thus, he could only be claiming that he had a right to trespass on the basis of the First Amendment--being engaged in free expression gave him the right to trespass. I don't see how the issue of trespass can be made irrelevant. He can't sue for false arrest for making the photograph because he was not arrested for making the photograph. Maybe that's the real reason the courts rejected his suit, no matter what we read in the decision after the fact.

Rick "wondering what standing Porat had for a false-arrest claim" Denney

[cyrus]

Porat was arrested for photography on a place that while technically private, was actually open to the public and the public regularly used that route to cross the "private" property. He didn't go marching into someone's back yard or anything of that sort. But in any case since the trespass charges were dropped we won't know whether he was actually trespassing (he wasn't on the property without permission after all, he just happened to be also taking pictures, and there was no sign or anything saying "no photography".) Note that later the buildig security guards were telling a news reporter that he couldn't photograph the buildings even from a public place - a very usual case of overzealous security guards, coupled with racists cops who had found a "non European" dude

[John NYC]

Porat was arrested for photography on a place that while technically private

End of story. If the place was public, it would have been a different outcome. This doesn't seem at all confusing to me. Private means private, whether people choose to enforce it regularly or not, fairly or not, it would be their choice.

[tgtaylor]

According to this judge in this case, the "Right to Photography" only applies to "communicative photography" - meaning photography that is intended to communicate a particular message to an audience. There is no such right to recreational photography for your own enjoyment. There's no reason why this line of thinking can't be extended to other art forms - no right to recreational painting, no right to recreational writing, etc. If you're doing these things for your own personal amusement rather that to communicate a particular message to someone else, you can be legally prohibited from doing so.

With the liberal bench under attack for many years now for "legislating from the bench," many judges are now adopting a "strict interpretation" of the law rather than the more expansive interpretation which was common in the past. Sure, many of us are just photographing for our own pleasure but deep down we also want to share our vision. Make sure that you also communicate that at the outset in your plea.

Thomas

[Ivan J. Eberle]

My read of the linked law review piece earlier in this discussion described Porat as trying to "bootstrap" that dismissal of the trespass citation, into what sounded to be an essentially frivolous lawsuit for false imprisonment and malicious prosecution. He did not prevail. The side issue of the first amendment is a very, very minor aspect to that. This does not seem to be a precedent setting case, or even a particularly important one.

Much worse outcomes happen to pro photographers than happened to poor amateur Porat. I was directly involved in something with far more "chilling effect" several years ago, yet was advised (by several attorneys) that it would be an utter waste of time and money to attempt to pursue any recourse after charges were dropped. There are shield laws that protect most local state and federal government agencies and officers from being sued for arresting someone, unless malicious prosecution can be shown-- a very difficult thing to prove even though it very likely happens with some regularity.

[Nathan Potter]

Cyrus, I understand your point and I agree there is a larger issue than what I implied. But I think it is a very minor concern. Certainly I have been harassed as much as anyone here, especially in my reckless youth when I photographed very aggressively.

I've found considerable sympathy in Police Departments and the Courts for what I was doing. I've survived numerous cases but here is one that was very successful for me.

I was setup with an 8X10 along Route 85 in Marlboro MA. photographing a severely polluted pond at the base of the old Marlboro landfill. Two town police cars came screaming up. Boy these guys really hasseled me but I refused to shut down. So they seized me and my gear and booked me into the local jail. I called my lawyer friend who easily guessed my predicament and I was eventually bailed out. Officially the charge was trespassing and that old "public nuisance" gig. Yes I was slightly on town property. I filed a complaint and later brought suit against the town police dept. At the time the landfill was a hot environmental political issue so I could understand the pressures. At a conference with town officials it was clear that none of them wanted any publicity. My lawyer was not intimidated. The court hearing (trial) got me $5000 and a police escort back to the site to finish the photography (terrific deal). Though I will say the judge was furious at the police dept. Of course I had to agree that the images would never be published but then the 5 K at the time was far more than I could get from any newspaper sales.

Anyhow I have found that the right to photography in both public and private places is pretty pervasive. I don't see much change in my lifetime of photography from early fifties to now. But vigilance is a must.

So get out there with your big cameras and get in the noses of your public officials and be intrusive. This is the best of free enterprise and why we live in an open society. Don't be intimidated by anyone.

Nate Potter, Austin TX.

[cyrus]

End of story. If the place was public, it would have been a different outcome. This doesn't seem at all confusing to me. Private means private, whether people choose to enforce it regularly or not, fairly or not, it would be their choice.

That's irrelevant. The trespass charges were dismissed. That was never at issue. It was never legally established that he was in fact trespassing.
Furthermore there are plenty of places in NYC which are technically private but the public nevertheless has a right to enter. "Liberty Park" - where the Occupy Wall Street demonstrations are located - for example is privately owned. Note that the judge in this case didn't say that Porat didn't have a right to take photos because he was a trespasser and a bad guy in general etc. No, the ruling was that SINCE HE WAS A HOBBYIST PHOTOGRAPHER, the photos he was taking were PRESUMED to be non-communicative (not intended to convey a particularized message to an audience) and were taken only for his own personal use - and therefore he did NOT have the first amendment right to take those photos. The fact that he was trespassing never entered into the judge's reasoning here. Trespassing or not, that had nothing to do with it. The judge didn't rule that trespassers didn't have first amendment rights, he ruled that hobbyists recreational photographers didn't have first amendment rights.

So the next time you see one of those "Photo Rights" handouts that claim "Photography is a First Amendment Right" - no, sorry, not true. Not if you're "just" a recreational hobbyist photographer who is taking photos for your own personal enjoyment.

[cyrus]

My read of the linked law review piece earlier in this discussion described Porat as trying to "bootstrap" that dismissal of the trespass citation, into what sounded to be an essentially frivolous lawsuit for false imprisonment and malicious prosecution. He did not prevail. The side issue of the first amendment is a very, very minor aspect to that. This does not seem to be a precedent setting case, or even a particularly important one.

Much worse outcomes happen to pro photographers than happened to poor amateur Porat. I was directly involved in something with far more "chilling effect" several years ago, yet was advised (by several attorneys) that it would be an utter waste of time and money to attempt to pursue any recourse after charges were dropped. There are shield laws that protect most local state and federal government agencies and officers from being sued for arresting someone, unless malicious prosecution can be shown-- a very difficult thing to prove even though it very likely happens with some regularity.

Frivolous or not, the judge's decision in this case created a new distinction between "recreational, hobbyist" photography, and "communicative" photography, saying the the former is not protected by the First Amendment - and furthermore this decision was upheld by the 2nd Circuit Court of Appeal, so it is indeed now a precedent. In fact it has been cited as authority for the proposition that "recreational" photography is NOT protected by the First Amendment. So whatever your opinion of the merits of the charges against Porat, we now have something entirely new - the idea that not all forms of photography are created equal, and that "recreational" photographers do not have First Amendment rights. That IS a precedent now.

If tomorrow you haul out your camera and decide to take some photos of the Brooklyn Bridge or the Empire State Building etc, and you are mere "hobbyist" photographer, and a security guard or a policeman gets in your face (as they are apt to do) you do NOT have the right to refuse their order to stop taking photos - even of public monuments, from public places. That IS a big deal.

Every single "Photographer's Rights" handout that you carry in your bag which says that you have some sort of "right" to photograph things, even in public places, is wrong. You do NOT have that right if you're taking photos for yourself and just because you like how something looks. No, to have a "right" to photograph things, even things that are entirely located in public, are not trademarked or copyrighted etc., you have to show that you were intending to communicate a particularized message to an audience through your photography.

[cyrus]

Cyrus, I understand your point and I agree there is a larger issue than what I implied. But I think it is a very minor concern.

Its not minor Nate. Go onto google - type in the phrase "Photography is a First Amendment right". See those results? They're all wrong now. That's a big deal. A really really big deal.

[John NYC]

That's irrelevant. The trespass charges were dismissed. That was never at issue. It was never legally established that he was in fact trespassing.
Furthermore there are plenty of places in NYC which are technically private but the public nevertheless has a right to enter. "Liberty Park" - where the Occupy Wall Street demonstrations are located - for example is privately owned. Note that the judge in this case didn't say that Porat didn't have a right to take photos because he was a trespasser and a bad guy in general etc. No, the ruling was that SINCE HE WAS A HOBBYIST PHOTOGRAPHER, the photos he was taking were PRESUMED to be non-communicative (not intended to convey a particularized message to an audience) and were taken only for his own personal use - and therefore he did NOT have the first amendment right to take those photos. The fact that he was trespassing never entered into the judge's reasoning here. Trespassing or not, that had nothing to do with it. The judge didn't rule that trespassers didn't have first amendment rights, he ruled that hobbyists recreational photographers didn't have first amendment rights.

So the next time you see one of those "Photo Rights" handouts that claim "Photography is a First Amendment Right" - no, sorry, not true. Not if you're "just" a recreational hobbyist photographer who is taking photos for your own personal enjoyment.

You are confusing points. No one can stop me from photographing from a public sidewalk as long as I am not breaking any other city ordinances. You don't have first amendment rights (which protects freedom of the press/speech... not hobbies) on private property.

[cyrus]

There is a difference here between US and English law. In England, trespass is a civil rather than a criminal offence and the police have no power to make you leave an area you are trespassing in.

There is a more fundamental difference too - judicial review. In the US, the ordinary courts have the power to declare any law passed by Congress or state legislatures to be invalid because, in the court's opinion, the law conflicts with the court's own interpretation of the US Constitution or the state constitution. This is a bit of a novelty (there is nothing in the Constitution itself which grants the courts this power.)

In Britain, in contrast, they have (had, actually) the opposite principle of Parliamentary Supremacy - anything parliament says is law, is law. Parliament could declare night to be day, or that everyone named Joe should be executed immediately, and that would be binding on all courts in the UK. The courts had no power to invalidate an Act of Parliament.

[cyrus]

No one can stop me from photographing from a public sidewalk as long as I am not breaking any other city ordinances.

Yes, they can. that's my whole point! Whether you're on private property or not is irrelevant. The language I cited from the Porat case says nothing about private v. public property photography. It makes a distinction between communicative v. non-communicative photography. According to this case, if you're a "hobbyist" photographer, it doesn't matter whether you're on private or public property - you do not have a right to take photos, because only photography intended to communicate messages to an audience is protected. You can quite legally be prevented from doing so, EVEN IF YOU"RE ON PUBLIC PROPERTY, if you're talking photos just for fun, and for your own enjoyment (which is what most photographers do.)

[John NYC]

Yes, they can. that's my whole point! Whether you're on private property or not is irrelevant. The Porat case says nothing about private v. public photography. It makes a distinction between communicative v. non-communicative photography. According to this case, if you're a "hobbyist" photographer, it doesn't matter whether you're on private or public property - you do not have a right to take photos. You can quite legally be prevented from doing so, EVEN IF YOU"RE ON PUBLIC PROPERTY.

I'm not going to argue with you. You are free to believe this case set a precedent to make photography illegal from any public space, but that is simply not the case.

[cyrus]

more info - read page 25 (http://www.njsba.com/images/content/1/0/1001979/Oct09.pdf):



In Porat v. Lincoln Towers Cmty. Ass’n, the court distinguished the motivation of the photographer, and held there is no First Amendment protection for purely private and recreational, non-communicative photography.

Porat, a “photo hobbyist,” was stopped by a Lincoln Towers’ apartment security guard for taking pictures, and was told photographing buildings was not permitted by “management policy.” Porat continued shooting, and said he was involved in “aesthetic purposes” and “recreational” photography. The security guard put him under “civilian arrest,” but Porat refused to show the guard his pictures. The police appeared, and cited Porat for trespass. Apparently one officer said that post-Sept. 11 security concerns were the rationale for the prohibition on photography of the building.

After no one showed to prosecute Porat, he sued for, among other things, a 1983 First Amendment retaliation claim. The court held that the First Amendment did not protect purely private recreational, non-communicative photography (e.g., the image must communicate an idea to an audience). Taking photographs in and of itself is not enough, but even if so, the retaliation here was not related to it. It would seem, therefore, that photography, if it is simply defined as pressing a shutter on a camera and making an image, no longer (if it ever did) takes on automatic First Amendment protection;

Notice there's no discussion of private v. public place. Instead the distinction was made on the basis of the "motivations" of the photographer, and whether he was engaged in communicative v. non-communicative photography.

So sorry, it simply is NO LONGER the case that photography even in public places is presumed to be protected by the First Amendment, and this view is growing in the courts.

[John NYC]

more info - read page 25 (http://www.njsba.com/images/content/1/0/1001979/Oct09.pdf):


So sorry, it simply is.

No, you just don't understand what happened from the point of the law, that is all.

[cyrus]

No, you just don't understand what happened from the point of the law, that is all.

I'll bet my law degree against yours.

[Richard M. Coda]

There are too many lawyers...

[Steve Smith]

If tomorrow you haul out your camera and decide to take some photos of the Brooklyn Bridge or the Empire State Building etc, and you are mere "hobbyist" photographer, and a security guard or a policeman gets in your face (as they are apt to do) you do NOT have the right to refuse their order to stop taking photos - even of public monuments, from public places. That IS a big deal.

No private security guard has any authority to stop you taking photographs from a public place. And no police office has that authority if there is no law banning it.


Steve.

[rdenney]

I'll bet my law degree against yours.

Sheesh. If you have to argue from the basis of having a degree and even a license, then perhaps you should wonder how strong your argument really is. If you can't persuade us, then how will you persuade a judge? A lawyer should be a licensed, professional communicator (as described to me by a lawyer who was distinguished for winning cases). Polish up your argument. Find better case law--maybe some other amateur hobbyist aesthete actually arrested for making photos while on public property, whose false-arrest suit was rejected because his intentions were not communicative.

Adding the diatribe about racism is sure to inflame emotions but it does nothing to actually strengthen your argument. Do you want emotion or victory?

In any case, though, if you are a lawyer, why do you need to raise the issue here at all? Do you think a bunch of guys cheering you on in a photographer's forum is going to sway the opinions of a judge? What do you want?

From the edited blurb: He was arrested for trespass. The guard held him because he was trespassing while taking photos. Had he been on public property, the guard would have had no standing to hold him. Once the trespass charge was dropped, there was nothing left. You can jump up and down insisting that he was arrested for photography, but it appears to me that it went down like this:

Guard: The management has a policy of not allowing photography on the property. I'm going to have to ask you to cease your photography and move along.

Photographer: Look, I'm just a hobbyist doing this for fun. I don't mean any harm.

Guard: Nevertheless, I'm asking you to cease and move along.

Photographer: And what if I refuse?

Guard: I will call the police.

Photographer: Go ahead, then, because I refuse to move along.

Guard: I'm placing you under citizen arrest for trespassing (dials the police).

In my version, everyone is polite, but it wouldn't change the law (from a judge's perspective) even if they weren't.

It seems to me the only standing the guard (or the management) had to make demands of the photographer is that the photographer was perched on their property. They would have had no such standing if the photographer had been on public property. The trespass is everything in this case. The cops knew they could not arrest him for photography--there is no law preventing it. They arrested him for the only crime they could accuse him of: trespass. A bum pandhandling passersby in the same spot might have been arrested for the same reason, and gotten even less consideration than Porat. I read the blurb above as meaning, "There was insufficient evidence that the photography in question deserved First Amendment protection in a case where the photographer was trespassing on private property." Without the trespass charge, the photographer's case devolved to, "They were mean to me."

Rick "noting that property rights are rather sacred in this country, too" Denney

[cyrus]

No private security guard has any authority to stop you taking photographs from a public place. And no police office has that authority if there is no law banning it.


Steve.

The porat case says you have no automatic right to take photos if you're merely a recreational photographer, and if the police get in your face about it and prevent you from taking the photos, even in a public place, no wrong has been done since they have not violated any legally-recognized "right."

It used to be that it was simply assumed that photography as a whole was protected by the First Amendment - the taking of photos as well as the display and sale of photos. Some court decisions could have been interpretted that way. But more recently, as the New Jersey Lawyer article I linked to above mentions, the courts are making a distinction specifically for the taking of photos, by saying that while the display and sale of photos is a form of expression, the mere taking of photos by a 'recreational' photographer which are not intended to be shown to an audience etc. is NOT a form of expression that enjoys first amendment protection. So, the assumption that all photography is protected by the First Amendment is no longer valid.

[cyrus]

Sheesh. If you have to argue from the basis of having a degree and even a license, then perhaps you should wonder how strong your argument really is.

Except that I quoted multiple other sources, and linked to them, and I was told (by apparently a non-law school graduate) that I was simply not understanding it right and that's all. We'll sorry, that's just not the case. I don't know how much clearer to make it - the last New Jersey Lawyer article I cited and linked to spelled it out. Take or leave it.

And it wasn't a "diatribe about racism" - it was a statement that came from the complaint. The photographer in that case was an Israeli who spoke with an accent, and this was something that the police specifically used against him.

Once again, whether he was arrested for trespass or not is totally irrelevant because, for the zillionth time, the trespass charges were dropped. That was never an issue. The language from the Porat case, which makes a distinction between the constitutional rights of hobbyist photographers and non-hobbyists, does not make that distinction based on whether he was trespassing or not. The court said, in effect, that REGARDLESS of whether he was arrested for trespassing or not, BECAUSE he was merely a "recreational photographer", he did not HAVE a First Amendment right that could have been violated in the first place.

And I raise this issue because it is relevant to photography. See, some of us actually bother to look into things rather than sit back and talk out of our asses.

[cyrus]

Look folks, I understand that you were told for years that you have a "right" to take photos from public places. Every single "photographer's rights" book and pamphlet etc. said that. That was an assumption that even some court decisions seemed to follow.

Well, you're going to have to accept that things change. The law on this point is changing, as the New Jersey Lawyer article points out: It would seem, therefore, that photography, if it is simply defined as pressing a shutter on a camera and making an image, no longer (if it ever did) takes on automatic First Amendment protection.

You still have the right to sell and display your photos. You also still have a right to take photos from public places IF you are engaged in "communicative photography" meaning that you're making photos with the intention of conveying a particularized message to an audience. However if you're a "recreational, hobbyist" photographer who takes photos for your own enjoyment, well, sorry, the law has started to change on your rights and you can no longer assume that the First Amendment even applies to you. As JohnNYC (who thought I was wrong about this) inadverently admitted himself, the first Amendment protects expression not hobbies. To be "expression", the photo must contain a message and be directed to an audience. This was the decision in Texas v Johnson from the 1970s. The courts are now applying that rule to photography - for photography to be expression protected by the first Amendment, it must contain an idea that is intended to be communicated to an audience. This means that taking photos for your own enjoyment is NOT considered to be a form of expression and is therefore NOT protected by the First Amendment - that was the decision in Porat, a case that was upheld on appeal, and has been cited as precedent for that view of the law several times since then by other courts deciding other photography related disputes.

[Allen in Montreal]

......
There are several cases that state that only "communicative" photography is protected by the First Amendment - meaning photographs that are intended to communicated a specific, identifiable message to an audience. Photographs taken by someone for their own personal enjoyment are NOT "communicative" and would therefore NOT be protected by the First Amendment.......,

If the situation here in Canada is at all similar, you will see that ruling creep into other cases and could soon become and often quote "Jurisprudence" and over time just be taken as the law of the land in all cases.

In the case of Quebec law protecting people from unknowing being published in newspapers and magazines in non newsworthty stories (feature stories etc), the slow twisting of that ruling has morphed into something completely different than the ruling that was handed down.


As for the tresspass charge,
if the space is private property that is open to public access, one can not be considered tresspapssing unless asked to leave, refuses to do so, warned of tresspass and one continues to refuse to leave. At that point it is tresspass and one can be charged.
I would imagine it must be somewhat similar in the US?

[Steve Smith]

As for the tresspass charge,
if the space is private property that is open to public access, one can not be considered tresspapssing unless asked to leave, refuses to do so, warned of tresspass and one continues to refuse to leave. At that point it is tresspass and one can be charged.
I would imagine it must be somewhat similar in the US?

Not sure about US but that is the same in the UK i.e. you are not trerspassing until asked to leave and refuse to do so.

Unlike the US and Canada (as I posted previously) it's not a criminal offence so you cannot be charged in the UK.


Steve.

[cyrus]

If the situation here in Canada is at all similar, you will see that ruling creep into other cases and could soon become and often quote "Jurisprudence" and over time just be taken as the law of the land in all cases.

In the case of Quebec law protecting people from unknowing being published in newspapers and magazines in non newsworthty stories (feature stories etc), the slow twisting of that ruling has morphed into something completely different than the ruling that was handed down.


As for the tresspass charge,
if the space is private property that is open to public access, one can not be considered tresspapssing unless asked to leave, refuses to do so, warned of tresspass and one continues to refuse to leave. At that point it is tresspass and one can be charged.
I would imagine it must be somewhat similar in the US?

Yes it is on both counts.

Regarding the first, there is already a case (http://www.firstamendmentcenter.com/commentary.aspx?id=21777)on the books that says that a newspaper had no right to publish nude photos of a wrestler - why? Not because of privacy violations etc. but because, in the court's opinion, the photo did not "express" any ideas, so were not "newsworthy" and therefore was not even the subject of First Amendment protection. In another case (http://caselaw.findlaw.com/nj-superior-court-appellate-division/1143309.html), a photo peddler working on the public sidewalk on Altantic City NJ was prohibited from taking photographs of people. Why? Not because he was selling the photos without a peddling license, rather because in the court's opinion, his mere "snapshots" did not express any ideas and as such he had no right to take those photos regardless of whether he had a license to peddle.

All in all, as it now appears, the courts do not say automatically that "Photography is protected by the First Amendment" even in public places. They are instead judging the motivations of the photographer and the "expressiveness" of their photos to decide whether the First Amendment even applies to them in the first place.

I won't get into the trespassing issue since it is not relevant to this discussion.

[John NYC]

As JohnNYC (who thought I was wrong about this) inadverently admitted himself, the first Amendment protects expression not hobbies.

I did not inadvertently admit this, as you say. I said it on purpose. The first amendment never did provide you a "right" saying you could photograh anywhere. It doesn't say that.

What I said was if you are not breaking any other laws, no one can stop you from taking photos in a public place. And that is true. They can arrest you for something else, but not for that. You can continue yelling about this all you want, but I wont believe you until you produce a law that tells me that is not true.

[Brian C. Miller]

Sheesh. If you have to argue from the basis of having a degree and even a license, then perhaps you should wonder how strong your argument really is.
...
In my version, everyone is polite, but it wouldn't change the law (from a judge's perspective) even if they weren't.

Rick, dismissing someone's verified expertise and then setting up a "straw man" argument doesn't add to the information that Cyrus is trying to disseminate.

Specific trespass laws vary from state to state. In Washington state, the trespass defense for this situation would be RCW 9A.52.090, "(2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises." Washington state doesn't seem to have anything on the books covering photography, although various security personnel seem to believe otherwise. The Washington ACLU blog (http://www.aclu-wa.org/blog/what-s-wrong-public-photography-private-property) has an entry about it, with some links to previous incidents.

[cyrus]

I did not inadvertently admit this, as you say. I said it on purpose. The first amendment never did provide you a "right" saying you could photograh anywhere. It doesn't say that.

What I said was if you are not breaking any other laws, no one can stop you from taking photos in a public place. And that is true. They can arrest you for something else, but not for that. You can continue yelling about this all you want, but I wont believe you until you produce a law that tells me that is not true.

But now you're contradicting yourself. On one had you're accept that "hobby" photography is not protected by law. Yet then you say that "no one can stop you from taking photos in a public place". Well yes, they can. See, if there is no law protecting your "right" to take hobby photos, then the police can quite legally shoo you away based on any pretext or vague discretionary power, the same way they shoo loiterers, vagrants and homeless people or for vague notions of "disorderly condut" etc.. There are all sorts of existing vague and generic laws of this sort that the police can apply to shoo you along. In the past these sorts of laws could not trump your presumed First AMendment Constitutional right to take photos but that's not the case anymore. Your former "right" to take photos in a public place does not necessarily exist anymore. And if thhis wasn't enough, tomorrow your local town council is perfectly free to pass an ordinance which specifically prohibts all "hobby" photography anywhere in the town, including public places, and you would have no legal basis to file any sort of legal challenge to such a law. In the past, you could have challenged the constitutionality of such an ordinance but now you can't because you do not have any constitutional right to take hobby photos.

You would have no more right to take a photo in public place than you would to chop wood or fly a kite or toss a ball or smoke a cigar in public place (yes smoking has been banned in public places by many cities including NYC.) Your fomer, assumed "right" to take photos in a public place is reduced to simply a matter for the discretionary opinion of the particular policeman. If he feels like shooting you along, you can't say "But I have a right to take photos in a public place!" No, you don't. Not if you're a hobby photographer. Not EVEN if youre in a public place. As a hobby photographer, according to this case, you do not have ANY right to take photos, ANYWHERE of OF ANYTHING. You simply do not fit under the First Amendment. Not on private property, not on public property, not in your own living room - and not OF anything - not of the Brooklyn Bridge, not of the Statue of Liberty, not of clouds, and not of your own children. The First Amendment simply DOES NOT APPLY to hobby photography according to this case, because hobby photography meant for self-enjoyment is supposedly not 'expressive'.

Now do you get it?

Frankly I don't care if you believe me or not. I'm not here to make people believe me. I've been studying this issue and consulting with my own legal authorities for several years now. Your belief or lack of belief bothers me not one bit. But FYI I did point out the law to you. The court decision in case of Porat is that law.

[BrianShaw]

""communicative photography" meaning that you're making photos with the intention of conveying a particularized message to an audience"

Has there been any definitions proposed for "particularized message" or "audience"?

[cyrus]

Has there been any definitions proposed for "particularized message" or "audience"?

Well the best asnwer I can find to "what is meant by a 'particularized message' is in Hurley (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/515/557.html), the court said that "particularized message" doesn't have to be a specific articulable statement:

[A] narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.
However Hurley was about a parade and not photography.

I don't know what definition has been given to "audience" either, although I am sure that there are plenty of cases derived from Texas v Johnson that deal with these issues though not in the context of photography.

Also I don't know when you're supposed to "intend" for this message to reach your audience. At the time you're taking the photo? Or later once you develop and print the photo?

[John NYC]

But now you're contradicting yourself. On one had you're accept that "hobby" photography is not protected by law. Yet then you say that "no one can stop you from taking photos in a public place". Well yes, they can. See, if there is no law protecting your "right" to take hobby photos, then the police can quite legally shoo you away based on any pretext or vague discretionary power, the same way they shoo loiterers, vagrants and homeless people or for vague notions of "disorderly condut" etc.. There are all sorts of existing vague and generic laws of this sort that the police can apply to shoo you along. In the past these sorts of laws could not trump your presumed First AMendment Constitutional right to take photos but that's not the case anymore. Your former "right" to take photos in a public place does not necessarily exist anymore. And if thhis wasn't enough, tomorrow your local town council is perfectly free to pass an ordinance which specifically prohibts all "hobby" photography anywhere in the town, including public places, and you would have no legal basis to file any sort of legal challenge to such a law. In the past, you could have challenged the constitutionality of such an ordinance but now you can't because you do not have any constitutional right to take hobby photos.

You would have no more right to take a photo in public place than you would to chop wood or fly a kite or toss a ball or smoke a cigar in public place (yes smoking has been banned in public places by many cities including NYC.) Your fomer, assumed "right" to take photos in a public place is reduced to simply a matter for the discretionary opinion of the particular policeman. If he feels like shooting you along, you can't say "But I have a right to take photos in a public place!" No, you don't. Not if you're a hobby photographer. Not EVEN if youre in a public place. As a hobby photographer, according to this case, you do not have ANY right to take photos, ANYWHERE of OF ANYTHING. You simply do not fit under the First Amendment. Not on private property, not on public property, not in your own living room - and not OF anything - not of the Brooklyn Bridge, not of the Statue of Liberty, not of clouds, and not of your own children. The First Amendment simply DOES NOT APPLY to hobby photography according to this case, because hobby photography meant for self-enjoyment is supposedly not 'expressive'.

Now do you get it?

Frankly I don't care if you believe me or not. I'm not here to make people believe me. I've been studying this issue and consulting with my own legal authorities for several years now. Your belief or lack of belief bothers me not one bit. But FYI I did point out the law to you. The court decision in case of Porat is that law.

I get that you don't understand what I am saying at all and keep misinterpreting it. I am finished talking with you. Good luck in your pursuits.

[Steve Smith]

You would have no more right to take a photo in public place than you would to chop wood or fly a kite or toss a ball or smoke a cigar in public place

I accept that as there is no right, it is not protected by your first amendment but if there is no specific law banning it, then no one can stop you doing it. That effectively makes it a right.

What I think you are suggesting is that there is a possibility that the law could change and the first amendment rights cannot be used to stop it.


Steve.

[Brian C. Miller]

Cyrus, shouldn't photography be defined as an act of observation? Observation occurs at all times, even if a person is blind. This is something that is beyond the First Amendment. The government (and authorities) are commanding that something may not be observed without their authorization (license).

[cyrus]

I accept that as there is no right, it is not protected by your first amendment but if there is no specific law banning it, then no one can stop you doing it. That effectively makes it a right.

What I think you are suggesting is that there is a possibility that the law could change and the first amendment rights cannot be used to stop it.


Steve.

You don't need a specific law banning public photography to go into effect.

Right now, photographers already get enough grief from rogue cops who take it upon themselves to "ban" photography even in public places, so god knows what would happen once it becomes accepted that casual public photography is not a constitutional right.

Of course a specific law could also be enacted, but existing laws could be applied too. There are plenty of existing "disorderly conduct" or anti-loitering etc. laws and there are general discretionary powers given to police to do things in favor of what they perceive to be "public safety" or "convenience" etc. Normally, these sorts of vague discretionary laws could not be applied to casual photography, but now they can.
See, if photography is merely non-expressive conduct, the courts will apply a lowest possible standard of reivew in judging the legality of whatever restrictions are being applied to it. So plenty of existing laws can be quite easily stretched to ban public hobbyist photography, and basically you'll have no real recourse.

[rdenney]

Rick, dismissing someone's verified expertise and then setting up a "straw man" argument doesn't add to the information that Cyrus is trying to disseminate.

My dramatization was intended to focus the discussion on what actually happened, not on various legal theories about what might come of it. My reading suggests that the facts of the case bear directly on its applicability as precedent for other cases. My dramatization can certainly be corrected by facts, at which time we might have something useful to discuss.

We know that the charge at the time of arrest was trespass. We know that the accused trespasser was making photographs. We know that the prosecutor dropped the trespass charges after the arrest. We know that the security guard was motivated to approach the photographer because of the photography. We know that he claimed photography was against the property owner's policy. But I see nothing in the report of the court's findings (which are, by definition, fact) indicating that the arrest by the police was made on the basis of the photography.

It seems to me that someone accusing a false arrest must either show that it is malicious, or that the arrest itself was unwarranted. And it can only be unwarranted, it seems to me, if there was a lack of probable cause of a crime being committed. With a photographer insisting to be allowed to stand on the private property and do whatever after being asked to leave, it would seem that the probable cause of trespass would be difficult to undermine. That would, of course, depend on the trespass laws of the state, as you describe. It makes no sense to me that the trespass charge ceases to be relevant just because it was later dropped. Since it was the basis for the arrest, it must be the basis for an accusation of false arrest.

Was this lawsuit brought in civil court? How did it end up in federal court?

Does there need to be a sign prohibiting photography when the photographer is on private property? It would seem to me that the property owner or his representative could make that demand however he chose, as long as the photographer was given a reasonable opportunity to comply. Hence, a security guard in a shopping mall can stop a photographer from making photographs even if others are not stopped. If the photographer refuses to comply, he can be asked to leave, and if he refuses, is trespassing, which is a crime in the U.S. (though perhaps not in the UK, and not uniformly in all the states). Isn't that a right reserved by the owners of private property?

I agree that photography is not necessarily a constitutional right, and if this is Cyrus's only point, then of coruse I would agree. But is that something new? The text of the First Amendment is:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It seems to me that the requirement is placed on Congress and the laws they pass, which are, as a subject of this and similar wording, subject to judicial review. A challenge based on the First Amendment would seem to me to require attacking a particular law which impinges on the rights protected by the Amendment. I just don't see how this confers on photographers who are 1.) not saying anything (speech) and 2.) not reporting anything (the press) the right to snap the shutter wherever they happen to be standing.

But illegal search and seizure, and arrest without due process, are also constitutional rights. If photography in a public place is not illegal, then arresting someone for doing it would, it seems to me, violate those other rights. This doesn't seem like a First Amendment issue, but rather an issue that might be addressed by the Fourth and Fifth Amendments. Or it would if it had occurred on public property. Every discussion of the rights of photographers that I have seen discusses what law enforcement can and cannot do in terms of challenge and arrest, in cases where photography is not specifically illegal.

I'm sorry I'm engaging this argument given that I'm not a lawyer, but I happen to believe that the laws were written by people and should be interpreted by people. We ought to be able to stick with the plain reading before we start applying the thousands of band-aids of subsequent court precedent used to "clarify" it. It is not my intention to dismiss Cyrus's expertise, but he should know how regular people like me might respond--people who might be sitting in the jury.

Rick "who wants to be able to make photographs in public places, but who also wants to be able to require trespassers to leave his property" Denney

[cyrus]

Cyrus, shouldn't photography be defined as an act of observation? Observation occurs at all times, even if a person is blind. This is something that is beyond the First Amendment. The government (and authorities) are commanding that something may not be observed without their authorization (license).

You could also characterize it as an act of recording your own thoughts/views. But there's nothing in the constitution that specifically says you have that right. It specifically says you have a right to free speech. The courts have said that the purpose of the First Amendment is to "discover truth" and to create a competitive "marketplace of ideas" etc but all of that implies that the purpose of the First Amendment is limited to expressing something to OTHER people. There's nothing in there about the right to express things or observe things for yourself, for your own benefit or to make art or doodle or paint just because you like to do so.

Now, you can argue that the fundamental values that the First Amendment is supposed to uphold are personal autonomy and self-fulfillment, and so the protections of the FIrst Amendment do indeed transcend simply communicating ideas to other people. Sadly, that's not the route that the case law has taken. The Supreme Court in Texas v Johnson said that the freedom of expression requires expressing particular ideas to an audience in such a way the liklihood was great that the auidence would understand it.

Now, perhaps after a few decades some enterprising lawyer will get the courts to recognize a broader view of the First Amendment than that - after all, we have a (very limited) recognition of a right to privacy, a right to raise your own children, etc even though nothing in the constitution specifically says you have those rights. But that's not the case currently.

[cyrus]

We know that the charge at the time of arrest was trespass. We know that the accused trespasser was making photographs. We know that the prosecutor dropped the trespass charges after the arrest. We know that the security guard was motivated to approach the photographer because of the photography. We know that he claimed photography was against the property owner's policy. But I see nothing in the report of the court's findings (which are, by definition, fact) indicating that the arrest by the police was made on the basis of the photography.

None of this makes an iota of difference. The court's decision - that non-expressive photography is not protected by the First Amendment - had nothing to do with any of this. Whether he was trespassing or not, whether he was allowed to take photos or not, the court's opinion was that since casual, hobbyist photography did not have any First Amendment protections, his claim that he was wrongly deprived of that right was simply not feasible. The trespass etc issues were therefore irrelevant.



Was this lawsuit brought in civil court? How did it end up in federal court?

Federal courts can handle both civil and criminal matters. In this particular case the complaint by Porat was filed in Federal court because he was suing under a Federal law known as "Section 1983" which allows people to sue gov't officials who have deprived them of constitutional rights.




I agree that photography is not necessarily a constitutional right, and if this is Cyrus's only point, then of coruse I would agree. But is that something new? The text of the First Amendment is:...(snip)
It seems to me that the requirement is placed on Congress and the laws they pass, which are, as a subject of this and similar wording, subject to judicial review. I just don't see how this confers on photographers who are 1.) not saying anything (speech) and 2.) not reporting anything (the press) the right to snap the shutter wherever they happen to be standing.


My point is that until now it was presumed that you have a constitutional right to take photos from public places. That's what every "photo rights" handbook says, that what other courts assumed. Now, a court has explicitly said that you do not, if your photography is purely for your own enjoyment. THis was never the case before. There are huge implications. In fact, if you can't take non-expressive photos (photos that don't contain "particularize messages intended to be conveyed to an audience") then you don't have any right to write in your diary either (after all, diaries aren't supposed to have any other audiences.) You don't have a right to doodle, since doodles dont' contain "particularized messages". I could go on. Pretty much the entire field of decorative arts - are not protected expression.

And as I mentioned previously, there doesn't have to be a specific law banning photography - exisitng generic "disorderly conduct" or "public safety" or "no loitering" laws can be quite easily applied to hassle photographers and even cite them or arrest them if neessary. This would not be a violation of search & seizure laws.

[BrianShaw]

Well the best asnwer I can find to "what is meant by a 'particularized message' is in Hurley (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/515/557.html), the court said that "particularized message" doesn't have to be a specific articulable statement:

However Hurley was about a parade and not photography.

I don't know what definition has been given to "audience" either, although I am sure that there are plenty of cases derived from Texas v Johnson that deal with these issues though not in the context of photography.

Also I don't know when you're supposed to "intend" for this message to reach your audience. At the time you're taking the photo? Or later once you develop and print the photo?

Why does this seem like "I know it if I see it"?

[rdenney]

My point is that until now it was presumed that you have a constitutional right to take photos from public places. That's what every "photo rights" handbook says, that what other courts assumed. Now, a court has explicitly said that you do not, if your photography is purely for your own enjoyment. THis was never the case before. There are huge implications. In fact, if you can't take non-expressive photos (photos that don't contain "particularize messages intended to be conveyed to an audience") then you don't have any right to write in your diary either (after all, diaries aren't supposed to have any other audiences.) You don't have a right to doodle. I could go on.

(By the way, I apologize--I edited my post while you were responding to it. I don't know if affects anything you said or your opinion of what I said, but I mention it for the sake of fairness.)

I take your point. I just think the Porat case doesn't provide grist for the mill. It seems to me there are too many competing elements in that case for it to succeed as precedent. A cleaner case might result in the opposite finding, with a judge rejecting an argument based on Porat because it isn't relevant.

You still have not persuaded me that the wording in the decision sufficiently divorces the First Amendment claim from the trespass claim. Again, it seems to me that a First Amendment claim has to attack a law on the books, which may, of course, be brought to fresh attention because it is applied in a new way. For example, the burning flag case that ended in the Supreme Court decision you cited earlier attacked an anti-desecration law, as I recall. Porat was not arrested for disturbing the peace or impeding traffic, or any of those other laws you warn about. I can see where a later judge might reject the precedent as applying to photography on public property (or on the photographer's property) simply because the law being attacked was a trespass law--because it was the only basis for the arrest.

But your point seems to me stronger with respect to the 4th and 5th Amendments. These are the rights I have always pictured in my mind when photographers have been harassed, or when the rights of photographers have been discussed or presented on crib sheets for photographers to carry. Photographers are harassed on the basis of a cop making the assumption (or pretending to) that the photography is illegal when in fact it is not. When there is no law being broken, there is no right of the government (or its representatives) to search, seize, or incarcerate. There is nothing in those two amendments about "Congress shall make no law..." and therefore they seem to regulate the actions of government and its representatives rather than Congress and the laws they pass. It seems to me that this also protects diary writers, etc., simply because they are not breaking the law when writing their diaries, even if sitting on a park bench while doing it.

Again, I draw this from a plain reading that any educated citizen ought to be able to undertake.

(Further edit: If a state passed a wholesale law banning photography in public places, then I would think that would be the time to bring out the First Amendment argument and try to get a better decision from the Supreme Court on what constituted protected expression.)

Rick "willing to learn, but not to reject a plain reading without a truly persuasive argument" Denney

[Allen in Montreal]

.....And as I mentioned previously, there doesn't have to be a specific law banning photography - exisitng generic "disorderly conduct" or "public safety" or "no loitering" laws can be quite easily applied to hassle photographers and even cite them or arrest them if neessary. This would not be a violation of search & seizure laws.

Agreed.
It is said that in Quebec, everybody is in violation of something, at all times while in public.
By design.
That way, they always have a card to play. It is whether or not they chose to play that card against one person or another at any given time that is the variable.
As we saw recently, it is illegal to stand still on a sidewalk or any municipal property in MTL. And it is illegal to refuse to obey a police directive ($628.00 fine).
The two most commonly used tactics to move a photographer along.

[megapickle1]

For me, a German citizen, it was an interesting reading. All your arguments pro or contra legal photography. What I can see is, that Mr. Porat had a bad lawyer who did not know the first amendment and forced a law suit on this basis.
My reading of the first amendment is, that what it says - free religion, free speech, the right for free assemble and the right to make petitions.
Only a professional photographer with assignment by the press or other media is protected by it. Not Mr. Ansel Adams for example and not me. Basta. It´s O.K. But so far as I know, there is no law, that prohibit photography per se, regardless for privat (hobby) or not . The rights of the property owners or the human subjects affected are another issue.
Excuse my horrible English but I´m no native speaker (and writer).
George

[John NYC]

For me, a German citizen, it was an interesting reading. All your arguments pro or contra legal photography. What I can see is, that Mr. Porat had a bad lawyer who did not know the first amendment and forced a law suit on this basis.
My reading of the first amendment is, that what it says - free religion, free speech, the right for free assemble and the right to make petitions.
Only a professional photographer with assignment by the press or other media is protected by it. Not Mr. Ansel Adams for example and not me. Basta. It´s O.K. But so far as I know, there is no law, that prohibit photography per se, regardless for privat (hobby) or not . The rights of the property owners or the human subjects affected are another issue.
Excuse my horrible English but I´m no native speaker (and writer).
George

You got it.

[cyrus]

For me, a German citizen, it was an interesting reading. All your arguments pro or contra legal photography. What I can see is, that Mr. Porat had a bad lawyer who did not know the first amendment and forced a law suit on this basis.
My reading of the first amendment is, that what it says - free religion, free speech, the right for free assemble and the right to make petitions.
Only a professional photographer with assignment by the press or other media is protected by it. Not Mr. Ansel Adams for example and not me. Basta. It´s O.K. But so far as I know, there is no law, that prohibit photography per se, regardless for privat (hobby) or not . The rights of the property owners or the human subjects affected are another issue.
Excuse my horrible English but I´m no native speaker (and writer).
George

The First Amendment has been interpretted to mean more than what the explicit text states in the Constitution itself. Freedom of "the Press" for example has been interpretted to mean generally freedom of expression - not limited just to the press. In the US the media do not have any more (or less) rights than an average citizen.

In fact the explicit text of the Constitution says that "Congress shall make no law..."
so taken at face value it would mean that 1-it applies only to Congress, and 2- there would be literally NO laws that restrict speech. However, neither is true. The First Amendment applies to not just COngress but to any law-making body in the US (state, local, federal) and there are of course many laws that restrict the freedom of speech and do so quite legally (for example, there is no right to engage in false advertising, even though advertising is a form of expression.)

[cyrus]

(By the way, I apologize--I edited my post while you were responding to it. I don't know if affects anything you said or your opinion of what I said, but I mention it for the sake of fairness.)

I take your point. I just think the Porat case doesn't provide grist for the mill. It seems to me there are too many competing elements in that case for it to succeed as precedent. A cleaner case might result in the opposite finding, with a judge rejecting an argument based on Porat because it isn't relevant.



The Porat case has already been cited as authority in other cases for the proposition that there is no right to casual public photography. It is precedent. It was affirmed on appeal to the 2nd highest court system that we have (the first being the Supreme Court)

And yes not only can existing laws be stretched to ban photography, and not only would you have no real recourse even if a law was wrongly stretched to ban photography (http://stretchphotography.com/blog/2010.07.01/banned-from-metro/)(since the courts would in practice give a lot of leeway in favor of the police) and not only can new laws be drawn up that explicitly ban photography, there are already some cities in the US that HAVE banned public photography (http://www.nowpublic.com/photography_banned_downtown_rockville_maryland), even of public places, ostensibly because the city has leased a portion of the public property to a private property management/development group. The argument there, of course, is that when the city leased the property to a private group, the private group did not get the power to violate the Constitution. However, if casual photography was never protected by the Constitution in the first place, then the private group can do whatever it wants in that regard.

While it certainly is true that a "better case" with a different fact pattern may result in a different outcome than Porat, it would be going against the existing tide. The problem really isn't the Porat case. All that case did was apply the conclusions of the 1974 Texas v JOhnson flag burning case to photography. THe problem is the narrow definition of protected expression that was in Texas v Johnson. And since that is a well-esablished Supreme Court decision, it will be hard to change it...if only because only the Supreme Court itself can change it.

[Steve Smith]

If photography in a public place is not illegal, then arresting someone for doing it would, it seems to me, violate those other rights.

That's the point I was trying to make... but Rick put it better than me.

Sure, a very small percentage of photographers have been hassled by police but that is not the norm and it is not right.

And as for 'no photography' signs in private places, this does not make photography there a crime.


Steve.

[megapickle1]

Only an idea - whats about surveillance-cameras? Are they legal or not? No message, not communicative.

George

[John NYC]

In the United States it is not illegal to take pictures when in a public space if you are breaking no other laws.

[Steve Smith]

In the United States it is not illegal to take pictures when in a public space if you are breaking no other laws.

It's not illegal if you are breaking other laws either.


Steve

[John NYC]

It's not illegal if you are breaking other laws either.


Steve

True.

[Kimberly Anderson]

Ok, so here I sit, a photographer with a 25+ year career in photojournalism, editorial, commercial, advertising and documentary photography wondering what I can do to 'pursuade' local authorities who may or may not be harassing me about the 'communicative' nature of my image making.

How can I prove a track record? How can I demonstrate, in the moment of contention, that my photography is expected to communicate, either to a narrow, or broader audience the things that I am seeing, experiencing and feeling? When I was a newspaper photographer I carried around a 'Press Pass', which in all honesty meant nothing to local law enforcement, but was instead a laminated I.D. card from my newspaper notifying anyone that I was a representative of their news organization.

Now that I am *not* a news photographer, but instead a 'cultural anthropologist' (who works and communicates with a camera), there is no news organization that I can turn to for an I.D. badge. Do I tell them that I have gallery exhibits? Do I mention my several blogs and/or websites? Do I mention the fact that I lecture both nationally and internationally on a semi-regular basis? Do I mention that I am a photography instructor at a university and use my images to communicate to my students?

At what point does the 'amateur' or 'hobbyist' photographer turn into one that is 'communicative'? Is all of my photography prior to that magical moment of legitimacy unprotected? What I am hearing is that yes, indeed it is unprotected.

This is a very VERY interesting discussion to me. I just got done lecturing about copyright last week and this conversation can dovetail well with that one.

I am not sure that I can give my students any concrete answers from the discussion here, and I honestly am worried that I will just be confusing them and muddying the waters.

Also, I am also not sure I feel comfortable teaching students about a topic that is still being formulated and one that I am not sure where I even fit into.

I am *not* dismissing your discussion, on the contrary...I am finding it quite persuasive and one that I am willing to gain more of an education about.

Thanks for your diligence in trying to explain your opinion. Some may agree, some may disagree, but in the end all you are doing is sharing your information. Something about leading horses to water seems appropriate here.

Thank you.

[rdenney]

In the United States it is not illegal to take pictures when in a public space if you are breaking no other laws.

Cyrus is warning that there is nothing preventing jurisdictions from making it illegal by passing a specific law preventing it. I think his concern that other nuisance laws might be routinely applied to photography represent no difference from the current situation, but he thinks it does. But making non-expressive photography illegal in whole jurisdictions would indeed be a new and bad thing.

Given that the 1st Amendment applies to laws rather than actions, it seems to me that there needs to be a law that would be challenged. A general law making non-expressive photography illegal throughout a jurisdiction would be such a law. But I'll bet that trying to make it a specific law in that way would attract a serious legal challenge from a lot more than the ACLU and a few photographers, and it would get a lot more press than on the pages of the LFPF. I can imagine a Supreme Court argument where the question is asked how one proposes to prevent photography using cell phones, etc. That has zero political potential, it seems to me.

Most of the discussions we've had on photography rights have revolved around privacy rights, with building owners and people on the street believing that they have rights that they do not have, and using those as the basis for sending their security guards to stop photographers. We've had many discussions on just how limited those rights really are, and on the assumption of those rights by security guards and cops. And when photography does not violate a nuisance law or someone's privacy rights, it is fully legal. But we've also discussed that people do have a right to privacy in many cases, especially when they are not public figures, and that has always limited what photographers can do without their permission.

Rick "wondering what Cyrus expects us to do" Denney

[BrianShaw]

"Rick "wondering what Cyrus expects us to do" Denney"

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.

[Brian C. Miller]

... I thought I should update you all on this point: we are all used to hearing the statement that photography is a First Amendment protected right. This is a statement that is widely distributed in various "photo rights" discussions.

No so.


Cyrus is warning that there is nothing preventing jurisdictions from making it illegal by passing a specific law preventing it. ...

Rick "wondering what Cyrus expects us to do" Denney

Looks like Cyrus' original post was just an update. What should we do? I'm guessing that it depends on your jurisdiction. A "Photograph Wall Street with Big Cameras" would work just as well to change authoritarian views as "Occupy Wall Street" is working to change politicians, banks and corporations.

[tgtaylor]

Looks like Cyrus' original post was just an update. What should we do? I'm guessing that it depends on your jurisdiction.

Well one thing that you should do is put in a little research into the orgins of free speach instead of hypothesizing endlessly:

Concepts of freedom of speech can be found in early human rights documents.[3] England’s Bill of Rights 1689 granted 'freedom of speech in Parliament' and the Declaration of the Rights of Man and of the Citizen, adopted during the French Revolution in 1789, specifically affirmed freedom of speech as an inalienable right. The Declaration provides for freedom of expression in Article 11, which states that:
"The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law."[5]
Article 19 of the Universal Declaration of Human Rights, adopted in 1948, states that:
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."[6]
Today freedom of speech, or the freedom of expression, is recognized in international and regional human rights law. The right is enshrined in Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights.[7] Based on John Milton's arguments, freedom of speech is understood as a multi-faceted right that includes not only the right to express, or disseminate, information and ideas, but three further distinct aspects:
the right to seek information and ideas;
the right to receive information and ideas;
the right to impart information and ideas.[7]
International, regional and national standards also recognize that freedom of speech, as the freedom of expression, includes any medium, be it orally, in written, in print, through the Internet or through art forms. This means that the protection of freedom of speech as a right includes not only the content, but also the means of expression


Consider the '60's Free Speech Movement at UC Berkeley:
http://en.wikipedia.org/wiki/Free_Speech_Movement

That's what I do but I took a course (required) in Critical Thinking in college.;)

Thomas

[cyrus]

In the United States it is not illegal to take pictures when in a public space if you are breaking no other laws.

These sorts of absolutist assertions are simply not true.

I guess I have to repeat the same thing over and over for some people:

There doesn't have to be a law that specifically bans photography. There are already plenty of laws on the books that can be used by the police to force a photographer in a public place to stop taking photos. There are public nuisance laws, loitering laws, vagrancy laws, generic and vague "creating dangerous conditions" or "hindering free flow of traffic" laws etc. Since it is now established that there is no Constitutionally-protected right to engage in recreational public photography, all of these laws can be used by the police to force a photographer to move along, and you will have no basis to challenge the police orders in court because they will have not violated any recognized right of yours.

[cyrus]

How can I demonstrate, in the moment of contention, that my photography is expected to communicate, either to a narrow, or broader audience the things that I am seeing, experiencing and feeling? ...
Thanks for your diligence in trying to explain your opinion. Some may agree, some may disagree, but in the end all you are doing is sharing your information. Something about leading horses to water seems appropriate here.

Thank you.

You're welcome Michael
As far as I can tell, since this "no Constitutional right to non-communicative photography" development is quite new, the precise details are not yet legally worked out. That will require either the passing of a statute by Congress and/or your local legislature which spells things out in greater detail, AND/OR the slow accretion of judicial opinions resulting from multiple litigation over time. Who has the burden to prove what? What is the standard of proof? Is it merely enough for the photographer to say "I intend to show this photo to other people" to make his photography "communicative" and therefore protected? Does he have to specify a particular audience? Is the intention to post the photo on a blog, where others in the random world audience can (but won't, necessarily) see it sufficient? etc etc. etc. All of this has yet to be worked out.

[cyrus]

The Declaration provides for freedom of expression in Article 11, which states that:
"The free communication of ideas and opinions is one of the most precious of the rights of man.

The French Declaration of the Rights of Man is not binding law in the US but anyway note:

The language you're citing from these sources is precisely the problem - what if you're not engaging in photography in order to "communicate ideas and opinions" but simply because you enjoy taking photographs for yourself?

See, all that high flutin' talk you quoted there has a built-in assumption: that the purpose of the freedom of expression is to 1- communicate to others, 2- particular ideas or opinions.

And that's why the court in the Porat case said that hobbyist, recreational photography which is "non-communicative" is not protected by the Constitution because it isn't intended to communicate any ideas to other people.

[tgtaylor]

These sorts of absolutist assertions are simply not true.

I guess I have to repeat the same thing over and over for some people:

There doesn't have to be a law that specifically bans photography. There are already plenty of laws on the books that can be used by the police to force a photographer in a public place to stop taking photos. There are public nuisance laws, loitering laws, vagrancy laws, generic and vague "creating dangerous conditions" or "hindering free flow of traffic" laws etc. Since it is now established that there is no Constitutionally-protected right to engage in recreational public photography, all of these laws can be used by the police to force a photographer to move along, and you will have no basis to challenge the police orders in court because they will have not violated any recognized right of yours.

Local ordinances such as "..public nuisance laws, loitering laws, vagrancy laws, generic and vague..laws..." like their Voter Registration Ordinaces counterparts of the '60, cannot be used to invalidate the individuals basic right of free speech. Although I recommend making it known at the outset that it is your intent to "express" an opinion in making a photograph (and isn't that what you always do if subconsciously?), note carefully the wording in the following:

Today freedom of speech, or the freedom of expression, is recognized in international and regional human rights law. The right is enshrined in Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights.[7] Based on John Milton's arguments, freedom of speech is understood as a multi-faceted right that includes not only the right to express, or disseminate, information and ideas, but three further distinct aspects:
the right to seek information and ideas; (Emphasis supplied)
the right to receive information and ideas; (Emphasis supplied)
the right to impart information and ideas.[7]


And make sure that you have a good lawyer if you are going to challenge an arrest or citation. Local ordinances that are struck down are usually done so on appeal and not at the trial court level.

Thomas

[cyrus]

Looks like Cyrus' original post was just an update. What should we do? I'm guessing that it depends on your jurisdiction. A "Photograph Wall Street with Big Cameras" would work just as well to change authoritarian views as "Occupy Wall Street" is working to change politicians, banks and corporations.

Well, there are 4 ways to respond.

First the US Constitution can be amended to specifically say that the freedom of expression is protected EVEN IF the speaker does not intend to convey a particular message to an audience. Heck while we're at it, it might was well say something like "AND STOP GIVING GRIEF TO PHOTOGRAPHERS!" But all that's just fantasy and will never happen.

Second, Congress can pass a law that specifically protects casual, recreational, non-communicative photography and create a procedure whereby photographers who were prevented from taking photos even by state authorities can challenge this in a Federal court. But there are other problems with that approach.

Thirdly, your State constitution can be looked upon on protect your right to engage in non-communicative photography. See, State constitutions can and often do provide more rights than the US Constitution. And if they can't be interpretted to protect a right to non-cmmunicative photography, they can be amended more easily than the US Constitution to have that right included.

Fourth you can lobby your state legislature to pass a law explicitly allowing non-communicative photography, as long as it isnt written with a whole bunch of loopholes.

The US federal courts are divided into "circuits" that each cover a specific geographic region of the US. The Porat decision was from the 2nd Circuit (http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Second_Circuit) which covers New York, Conn. and Vermont. There are 13 circuits. It is still theoretically possible for this to be considered the "minority" view if other circuits take a different view of the matter (though for some reason the legal article from the New Jersey Lawyer magazine I linked to earlier said it is already the "majority view" and adopted in other circuits.) Eventually, if there is enough "conflict" between the circuits, after many years the Supreme Court may step in and make a decision on the matter that would settle the issue for all the circuits. But this may take generations, if ever, to happen. And, judging by the make up of the court currently, they would probably not rule in favor of a right to non-communicative photography.

[Asher Kelman]

Based on John Milton's arguments, freedom of speech is understood as a multi-faceted right that includes not only the right to express, or disseminate, information and ideas, but three further distinct aspects:
the right to seek information and ideas;
the right to receive information and ideas;
the right to impart information and ideas.

International, regional and national standards also recognize that freedom of speech, as the freedom of expression, includes any medium, be it orally, in written, in print, through the Internet or through art forms. This means that the protection of freedom of speech as a right includes not only the content, but also the means of expression
[/I]



Thomas,

Those three concepts




the right to seek information and ideas;

the right to receive information and ideas;

the right to impart information and ideas.




Are all both intuitive and more importantly, entirely logical pre-requisites for freedom of expression.

So I firmly hold that anyone stating, "I'm formulating and creating speech by my photography" to the inquiring, objecting or arresting officer, would have likely framed their case for a great lawyer to take all the way up to the Supreme court.

Asher

[cyrus]

Local ordinances such as "..public nuisance laws, loitering laws, vagrancy laws, generic and vague..laws..." like their Voter Registration Ordinaces counterparts of the '60, cannot be used to invalidate the individuals basic right of free speech.

But the Porat case said that non-communicative, recreational hobbyist photography is not protected by the concept of any "right to freedom of speech" in the first place - so yes, such local ordinances etc CAN indeed be used to do so.

Sure, when confronted by the police, you can claim (or lie?) that you're NOT a mere recreational hobbyist photographer and are engaged in "communicative" rather than "non-communicative" speech. However, even assuming that you're being truthful, it can't be assumed those magic words alone would provide you with some sort of cloak of protection and would scare away the police. tHey could still shoo you away, and prevent you from taking the photos, and then it would be up to you to go to court and PROVE that you were intending to engage in communicative photography, etc etc etc In practice that would be a pretty worthless victory.

[cyrus]

Thomas,

Those three concepts




the right to seek information and ideas;

the right to receive information and ideas;

the right to impart information and ideas.




Again note that these three concepts all frame the issue of freedom of expression in terms of sending/receiving ideas and opinions from/to other people: "impart," "seek," "recieve" etc. They're "communicative". Here, we're talking about NON-communicative photography - photography by the casual recreational hobbyist photographer that does NOT nessecarily intend to communicate ANY particular idea or opinion to ANYone else; photography that is done just because a photographer likes to take photos of flowers and clouds etc for his own personal enjoyment, and not to communicate any idea but rather because he simply likes looking at flowers and clouds.

[tgtaylor]

Cyrus,

In today's policital and judicial environment one must clearly and unequivocally state their claim. It's not like in the good '0l days when a William O Douglas will insert a defense or claim that wasn't explicately raised.

Thomas

[tgtaylor]

Again note that these three concepts all frame the issue of freedom of expression in terms of sending/receiving ideas and opinions from/to other people. They're "communicative". Here, we're talking about NON-communicative photography - photography by the casual recreational hobbyist photographer that does NOT nessecarily intend to communicate ANY particular idea or opinion to ANYone else; photography that is done just because a photographer likes to take photos of flowers and clouds etc for his own personal enjoyment.

Cyrus,

Note that it is impossible to first communicate an idea or opinion without first "seeking" and "receiving" it.

Thomas

[John NYC]

These sorts of absolutist assertions are simply not true.

I guess I have to repeat the same thing over and over for some people:

There doesn't have to be a law that specifically bans photography..

The cops can arrest you for anything BUT THEY CANNOT arrest you FOR making photos in public places. They can arrest you for just standing there. It is called loitering. If you don't have a camera it doesn't matter.

[cyrus]

Looks like Cyrus' original post was just an update. What should we do? I'm guessing that it depends on your jurisdiction. A "Photograph Wall Street with Big Cameras" would work just as well to change authoritarian views as "Occupy Wall Street" is working to change politicians, banks and corporations.

Sadly and ironically, a "Photograph Wall Street with Big Cameras" thing would be communicative photography since youre intended to communicate a message of defiance and concern about the rights of photographers to an audience, and would therefore be presumably protected by the First Amendment, and so would not help the casual recreational non-communicative photographer.

[cyrus]

.

The cops can arrest you for anything BUT THEY CANNOT arrest you FOR making photos in public places. They can arrest you for just standing there. It is called loitering. If you don't have a camera it doesn't matter.

Again, you're just not getting it. If you don't have a right to engage in recreational non-communicative photography, they can do whatever they want in order to prevent you from taking photographs, and they will not have violated any "right" because you never had the right to take those photos in the first place. They can claim the authority of any number of laws to do so - if not "loitering" then "creating a nuisance" or "hindering traffic" or "creating a dangerous situation" etc. It doesn't really matter what law they cite, if any: since you don't have a right to engage in casual non-communicative public photography in the first place, you will have no legal basis to challenge them in court. You can't for example say "But Your Honor, I wasn't hindering traffic or loitering" because when reviewing the legality of such police conduct which does NOT violate any constitutional rights, the courts apply a standard of review that is VERY favorable to the police. Whether you're "creating a nuisance" or "hindering traffic" etc is almost entirely left to the discretion of the police. The courts don't second guess the cops when it comes to, for example, how they control traffic flow, especially when there's no interference with a Constitutional right involved.

I think I'm done explaining this point now. Sheesh

[John NYC]

Sadly and ironically, a "Photograph Wall Street with Big Cameras" thing would be communicative photography since youre intended to communicate a message of defiance and concern about the rights of photographers to an audience, and would therefore be presumably protected by the First Amendment, and so would not help the casual recreational non-communicative photographer.

Fat chance... Please read my thread for requirements of photographing in NYC without a permit. You would be stopped for "exerting exclusive use of space" almost certainly. You could, however, do it after getting a permit.

Note there is no tripod law, there is a rule against staging equipment on the ground and exerting exclusive use of space. This is why fashion photos here have assistance hand hold umbrellas and battery packs etc.

[Steve Smith]

The cops can arrest you for anything.

Here, they can only arrest you for an arrestable offence. I expect it's the same where you are.

The police have to give you the reason for your arrest. They cannot state that "you are under arrest for wearing odd socks" and put you in a cell.

http://www.youtube.com/watch?v=BO8EpfyCG2Y


Steve.

[Steve Smith]

You would be stopped for "exerting exclusive use of space" almost certainly. You could, however, do it after getting a permit.

If there were ten times as many photographers as there were officials trying to assert their rules, I think they would give up.


Steve.

[John NYC]

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.


Again, you're just not getting it. If you don't have a right to engage in recreational non-communicative photography, they can do whatever they want in order to prevent you from taking photographs, and they will not have violated any "right" because you never had the right to take those photos in the first place. They can claim the authority of any number of laws to do so - if not "loitering" then "creating a nuisance" or "hindering traffic" or "creating a dangerous situation" etc. It doesn't really matter what law they cite, if any, because since you don't have a right to engage in casual non-communicative photography in the first place, you will have no legal basis to challenge them in court. You can't for example say' But judge, I wasnt hindering traffic" because when reviewing the legality of such police conduct which does NOT violate any constitutional rights, the courts apply a standard of review that is VERY favorable to the police. Whether you're "creating a nuisance" or "hindering traffic" etc is almost entirely a matter to be decided by the discretion of the police. The courts don't second guess the cops when it comes to, for example, how they control traffic flow.

[John NYC]

Here, they can only arrest you for an arrestable offence. I expect it's the same where you are.

The police have to give you the reason for your arrest. They cannot state that "you are under arrest for wearing odd socks" and put you in a cell.

http://www.youtube.com/watch?v=BO8EpfyCG2Y


Steve.

That is the same here. They can arrest you for any offense they can make fit the situation. You would then have to challenge it later if it was bogus.

[John NYC]

If there were ten times as many photographers as there were officials trying to assert their rules, I think they would give up.


Steve.

Doubtful. The laws are not there to hinder casual photographers. They are there to generate revenue for commercial film and tv shoots mainly. It forces the issue.

And all of this was in place long before 9-11. It was not designed to prevent terrorists from using cameras.

[cyrus]

Cyrus,

Note that it is impossible to first communicate an idea or opinion without first "seeking" and "receiving" it.

Thomas

THomas the whole point is that the guy who is a hobbyist recreational photographer is not out to seek or impart any idea to anyone else. So your question is irrelevant to the issue. He is not communicating anything to anyone. He is just taking photos for his own personal enjoyment.

[Brian C. Miller]

Well one thing that you should do is put in a little research into the orgins of free speach instead of hypothesizing endlessly:

...

That's what I do but I took a course (required) in Critical Thinking in college.;)

Ah, and the point that I made earlier is that photography is part of observing. If the act of accurate observation is made illegal, then how can accurate speech be made? And I have also made the point, that since the authorities are harassing the photographer unless the photographer is part of a news agency, then start or join one!

I think that what is happening here is that authorities are just figuring out how much trouble they'll get into for stupid behavior. Norm Stamper (http://normstamper.com/), former Seattle police chief, was interviewed on Coast to Coast AM (link (http://www.coasttocoastam.com/show/2011/10/08)) about his new book, Breaking Rank (http://www.amazon.com/Breaking-Rank-Expose-American-Policing/dp/1560258551/ctoc). A lot of the crap police pull is based on how much backlash they will receive, so of course they make sure that they are harassing an individual instead of a member of a news organization.

[cyrus]

Here, they can only arrest you for an arrestable offence. I expect it's the same where you are.

The police have to give you the reason for your arrest. They cannot state that "you are under arrest for wearing odd socks" and put you in a cell.

http://www.youtube.com/watch?v=BO8EpfyCG2Y


Steve.

The police may not bother arresting you for "Hindering traffic" or whatever other law they resort to in order to prevent you from taking photos (in fact they would prefer not to, because of the paper work involved) but they can still command you to stop taking photos and move along, and if you refuse THEN you've "refused to abide by a lawful order" which IS going to lead to your arrest. And if you resist further, you can be charged with "resisting arrest" and "assault on a police officer" and very quickly now you're in much deeper doo doo. Sometimes, the police have been known to deliberately put you into painful locks in order to deliberately provoke a defensive reaction from your body - pressing away from something sharp jabbing you in the ribs repeatedly for example - which can then be considered as assault on a police officer.

[John NYC]

THomas the whole point is that the guy who is a hobbyist recreational photographer is not out to seek or impart any idea to anyone else. So your question is irrelevant to the issue. He is not communicating anything to anyone. He is just taking photos for his own personal enjoyment.

Yes. He was taking photos on private property, not public property.

[cyrus]

Ah, and the point that I made earlier is that photography is part of observing. If the act of accurate observation is made illegal, then how can accurate speech be made? .

That could be the basis of an interesting philosophical debate but the law does not recognize a right to "observe" as part of a first amendment right. It does recognize a right to "receive information" but from other people not from nature and flowers and clouds and pretty sunsets.

It would be sad that in order to take a photo of a pretty sunset you'd have to claim to be a member of a news organization. But your mere membership in such an organization would not be sufficient to prove that you're engaged in communicative photography. You'd still have to prove, based on the naked wrestler case I linked to earlier, that there was some idea or opinion contained in your photo that made it particularly "newsworthy" and therefore a form of expression protected by the first amdnmnt

[cyrus]

Yes. He was taking photos on private property, not public property.

OMG go read this thread over - the Porat case made no distinction btween private and public property. It made a distinction between communicative v non-communicative photography, regardless of whether you're standing on private or public property.

[QT Luong]

"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.

[John NYC]

He was arrested for trespassing. He was not arrested for taking photos.

I understand your points later about his subsequent challenge of his arrest on first amendments rights.

My point is, he would never have been arrested is he was on public property because there is no law against that. If he had been arrested for some other made up charge, he could have challenged on those grounds, not on first amendment rights violations.

For the 11th time, I understand what you are saying. I just don't agree with your alarmist stance. I also don't believe that anything has changed. The first amendment doesn't protect against any activity someone might do. Otherwise, anyone could just run around clicking a shutter on a digicam all day long and claim anyone stopping them from doing anything else they happened to be doing was violating their first amendment rights.

Since I publish my images in numerous ways, I am really not worried about this case for myself.


OMG go read this thread over - the Porat case made no distinction btween private and public property. It made a distinction between communicative v non-communicative photography, regardless of whether you're standing on private or public property.

[BrianShaw]

Ah, and the point that I made earlier is that photography is part of observing. If the act of accurate observation is made illegal, then how can accurate speech be made?

I'm quite sure I don't want to get involved in this discussion, but I feel compelled to comment that photography is part of recording observations. Listening to phone calls is "observing" too but recording them is considered to be something different (and illegal, from what I've heard, under some circumstances).

[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.)

[tgtaylor]

THomas the whole point is that the guy who is a hobbyist recreational photographer is not out to seek or impart any idea to anyone else. So your question is irrelevant to the issue. He is not communicating anything to anyone. He is just taking photos for his own personal enjoyment.

Cyrus, it is not absolutely necessary, IMO, that that the hobbyist have the intent "...to seek or impart any idea to anyone else." He has the well enshrined right to seek and receive for his own gratification and knowledge. Indeed civilization would not have advanced to its current stage without the hobbyist. Wittness the advent of photography itself as an example. Again:

Based on John Milton's arguments, freedom of speech is understood as a multi-faceted right that includes not only the right to express, or disseminate, information and ideas, but three further distinct aspects:
the right to seek information and ideas;
the right to receive information and ideas;
the right to impart information and ideas.

That should have been laid out before the court in the case you cited but it never was and the court, even if requested for in the relief, is not bound to state your case for you.

Thomas

[cyrus]

the right to seek information and ideas;
the right to receive information and ideas;
the right to impart information and ideas.


Oh Tomas, I only wish Milton was binding legal authority but it isn't. In any case, with respect to:

the right to seek information and ideas;
the right to receive information and ideas;
the right to impart information and ideas.

These are all forms of communication of information and ideas. The point of this discussion however is about non-communicative photography - photography that is done not for the purpose of seeking, sending or receiving any information or ideas. It is rather done just because you enjoy doing it.

However, in the legal-philosophical writings about of the 1st Amendment, there IS the idea that freedom of expression has communicative as well as non-communicative justifications. Apart from being necessary for good governance and the discovery of truth and other communicative justifications, the freedom of expression is a basic prerequsite for autonomy and self-realization. Unfortunately, the Supreme Court case of Texas v. Johnson, which the Porat decision relied upon in concluding that hobbyist photography was not protected speech, did not mention those things as being part of the process of deciding when speech should be protected.

[cyrus]

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


Well, maybe. But my understanding is that these kind of "trumped up" charges would generally get resolved before court.

My point in saying that the decision is 'discretionary' is not that it is necessarily "unreasonable" or "trumped up". No, the cop can quite validly and legitimately think that you as a photographer who is taking a photo on a sidewalk are causing annoyance and disrupting the flow of traffic or loitering or whatever, and tell you to move on. See, that wasn't the case in the past. In the past, when ALL photography (whether communicative or non-communicative) was considered to be a constitutional right, legally the cop could not simply demand that you move along, but had to take into consideration that you had a constitutional right to take photos in a public place. Causing "public inconvenience" etc was not a sufficient justification to overcome your constitutionally protected right to take photos. The worst they could do was impose some sort of permit requirement but even then all sorts of additional constitutional protections would exist and had to be met by the authorities, all to ensure that your fundamental right to take photos was not infringed upon. And if they violated your right to take photos, you could sue them (as a number of photographers have done.)

But now that taking photos is not deemed to be constitutionally protected, then the cop can treat you in the same category as the guy who insists on playing hacky-sack on a crowded sidewalk. The cop can demand that you move along and can do so merely based on his own opinion (whether subjectively valid or trumped up) that you're potentially causing some sort of problem. Your conduct of taking photos in public is deemed to be no more legally protected than playing hackey sack or flying a kite. And no, there's no permit you can apply for either. :)

[tgtaylor]

For what it's worth:


American Convention on Human Rights


Article 13. Freedom of Thought and Expression
1.Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
2.The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
1.respect for the rights or reputations of others; or
2.the protection of national security, public order, or public health or morals.
3.The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
4.Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.
5.Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

Signed by the Unites States but not yet ratified.


Universal Declaration of Human Rights
Article 19.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Adopted by the United States. :)

Sorry Cyrus but I doubt that your argument would (and it shouldn't!) hold-up under a reasoned judicial opinion provided that the case is properly set-forth and presented before them.

Thomas

[cyrus]

Thomas - these bits and pieces of learned treatises and such that you post are nice & noble-sounding but 1- are not legally binding, and 2- do not address the issue.

[tgtaylor]

I'm afraid that you are wrong in that Cyrus. :)

"Everyone" in the article posted above would necessarily include the "hobbyist." See the 14th Ammendment.

Thomas

[BrianShaw]

Thanks, Cyrus, for your further explanation in post #113. I'm starting to think that this is an interesting topic but of little practical relevance.

[cyrus]

I'm afraid that you are wrong in that Cyrus. :)

"Everyone" in the article posted above would necessarily include the "hobbyist." See the 14th Ammendment.

Thomas


Thank you Thomas, I am well aware and quite familiar with the 14th Amendment, which has no particular bearing on the issue.

[cyrus]

Thanks, Cyrus, for your further explanation in post #113. I'm starting to think that this is an interesting topic but of little practical relevance.

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? :rolleyes: Your choice. But the "photo rights" handouts and books that say you have a right to engage in public photography are wrong. You only have this right for "communicative" photography and that excludes everyone who engages in photograph for their own enjoyment.

[John NYC]

First, this isn't "alarmism".

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 -

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.

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.

[John NYC]

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? :rolleyes: 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.

[cyrus]

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.

[cyrus]

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.

[John NYC]

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.

[John NYC]

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.

[John NYC]

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?

[QT Luong]

> 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.

[AF-ULF]

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.

[cyrus]

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.

[cyrus]

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 (http://www.aclu.org/racial-justice/nyclu-sues-nypd-harassing-photographers). 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.

[cyrus]

Only in some circumstances if you take your interpretation of the Porat case.

No, the Porat case would be totally irrelevant. The Porat case said that nonexpressive photography can be banned. Since laughing, crying and speaking are expressive - they express happiness, sadness etc. - then they are protected by the First Amendment.

[John NYC]

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.

That is not the point of my scenario, and you seem to be avoiding it on purpose. How would they rule do you think? You said twice now that laughing is protected by the first amendment. Do you think they would have upheld Porat's claims if he had been laughing instead of photographing.

You've worked yourself into some untenable logic here is the problem, and now you are trying to squirm out of it like you have on each of my posts, by calling out individual items and claiming that is my point when it isn't.

[John NYC]

They don't have to "make up" anything and there doesn't have to be a specific law against 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.

Yes they do have to make something up if they want to arrest you for photography. You can't be arrested for photography alone, not legally. That is just a fact. That you continue to dispute it is just ridiculous.

Final comment to you. Maybe you will get it but I doubt it: Photography is not illegal in the United States of America. You cannot be arrested (legally) for taking a picture from a public space. You can only be arrested for some other law you are breaking, perhaps while taking a picture.

[cyrus]

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.

Wow easy law school grade there! LOL

[cyrus]

Yes they do have to make something up if they want to arrest you for photography. You can't be arrested for photography alone, not legally. That is just a fact. That you continue to dispute it is just ridiculous.

Final comment to you. Maybe you will get it but I doubt it: Photography is not illegal in the United States of America. You cannot be arrested (legally) for taking a picture from a public space. You can only be arrested for some other law you are breaking, perhaps while taking a picture.

You're just not listening. Nobody said photography is illegal. Nobody said you could be arrested for taking pictures of a public space. The point was that if yuo're a mere hobbyist photographer, your "right" to take pictures, even of a public place, is not protected by the first amendment as the "photo rights" handouts claim, and therefore your ability to take photos can be regulated or even banned, as easily as the police can prohibit someone from playing hackey sack on a sidewalk or chopping wood on a sidewalk. As a hobbyist photographer, you have no more rights to take a photo of a public place than you do to play hackey sack or chop wood in public. All of those things are "mere conduct," and not Constitutionally-protected expression. Furthermore, there doesn't have to be specific law that prohibits public photography for the police to use against you, just as there is no specific law against chopping wood on a public sidewalk in order for the police to quite legally prevent you from doing that.

Get it? Clear??

[cyrus]

That is not the point of my scenario, and you seem to be avoiding it on purpose. How would they rule do you think? You said twice now that laughing is protected by the first amendment. Do you think they would have upheld Porat's claims if he had been laughing instead of photographing.

You've worked yourself into some untenable logic here is the problem, and now you are trying to squirm out of it like you have on each of my posts, by calling out individual items and claiming that is my point when it isn't.

Sigh' I was responding to this post (http://www.largeformatphotography.info/forum/showpost.php?p=792697&postcount=124) by you.

[QT Luong]

You're just not listening. Nobody said photography is illegal. Nobody said you could be arrested for taking pictures of a public space. The point was that if yuo're a mere hobbyist photographer, your "right" to take pictures, even of a public place, is not protected by the first amendment as the "photo rights" handouts claim, and therefore your ability to take photos can be regulated or even banned, as easily as the police can prohibit someone from playing hackey sack on a sidewalk or chopping wood on a sidewalk. As a hobbyist photographer, you have no more rights to take a photo of a public place than you do to play hackey sack or chop wood in public. All of those things are "mere conduct," and not Constitutionally-protected expression. Furthermore, there doesn't have to be specific law that prohibits public photography for the police to use against you, just as there is no specific law against chopping wood on a public sidewalk in order for the police to quite legally prevent you from doing that.

Get it? Clear??

Let see. If you chop wood or take pictures, police can stop you for, let say public disturbance. Did your actions were actually a public disturbance ? There is a matrix of four cases.

If no, with both actions you can complain to relevant authorities that you were stopped for an action which was not a disturbance. If yes, and you were chopping wood, you clearly have no recourse.

Now cyrus, are you saying that if your photography was a public disturbance, you would still be allowed to carry on with it because it protected by the 1st ?

[cyrus]

Now cyrus, are you saying that if your photography was a public disturbance, you would still be allowed to carry on with it because it protected by the 1st ?

Absolutely. See, the First Amendment generally trumps "public disturbance" prohibitions. If you're engaged in "communicative photography" then you have a RIGHT to "disturb the public" because in our system of law, free speech is deemed to be more important than not disturbing the public -- god bless the USA. The worst that the police can do is impose a permit scheme, which places some "reasonable time place manner" limits to your photography in order to try to minimize the public disturbance - but they can't prevent you from taking photos because it would cause a public disturbance. Certainly not! If only "non disturbing" speech was allowed then there would be no free speech. This is basic constitutional law. See for example the case of Terminiello v. Chicago (http://en.wikipedia.org/wiki/Terminiello_v._Chicago) - the guy there was charged for "disturbing the peace" because he made a radical speech that got people riled up. Supreme Court ruled that stirring people up was probably even a good thing.

In general, we don't allow or prohibit speech based on whether the public approves of it or finds it disturbing or annoying or whatever.

Note of course the it also depends on the nature of the public disturbance. Causing people to get upset and worked up is quite legal. Causing a mass riot is something else.

[cyrus]

Let see. If you chop wood or take pictures, police can stop you for, let say public disturbance. Did your actions were actually a public disturbance ? There is a matrix of four cases.

If no, with both actions you can complain to relevant authorities that you were stopped for an action which was not a disturbance.

Only in theory and your complaint would go nowhere. The problem with this is that when the courts decide such matters they will almost always side with the cops. its not because they believe the cops more - though that may be the case. Rather, they are required to do so by law. If there is no constitutional right involved (and there isn't when it comes to chopping wood in public, or engaging non-communicative photography) the courts apply the absolute LOWEST standard of review in judging the legality of government actions. The courts don't want to get into the business of regulating the nitty-gritty affairs of how the police regulate things like traffic and public disturbances etc. So whether you were actually causing a disturbance or not, is largely and practically irrelevant. Once the cop swears under oath that in his opinion as a professional law enforcement officer, your non-constitutionally protected conduct was causing a problem, you'll have a hard time proving otherwise.

[BrianShaw]

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? :rolleyes: Your choice. But the "photo rights" handouts and books that say you have a right to engage in public photography are wrong. You only have this right for "communicative" photography and that excludes everyone who engages in photograph for their own enjoyment.

Is there a law or statute on the books for which I can be arrested for performing photography that is not "communicative" or pressented to an "audience"?

Cops don't enforce legal decisions, they enforce laws.

[BrianShaw]

This entire discussion reminds me of a law school final.

LOL. I was thinking more that it reminds me of a lawyer who doesn't have enough paying work. But whatever brings people pleasure is OK with me.

[QT Luong]

Thanks for clarifications cyrus. The only way one can establish that photography is not "communicative" is by explicit admission from the photographer. So if this issue is a real concern to you, maybe you should contact the folks who put out the "photo rights handouts" so they would teach photographers never to say so.

[BrianShaw]

UNCLE. After reading post 135 I'll concede and (although maybe not being 100% truthfull) say that I got it. This mental masturbation is making my right hand tired. Good night chaps.

[John NYC]

You're just not listening. Nobody said photography is illegal. Nobody said you could be arrested for taking pictures of a public space. The point was that if yuo're a mere hobbyist photographer, your "right" to take pictures, even of a public place, is not protected by the first amendment as the "photo rights" handouts claim, and therefore your ability to take photos can be regulated or even banned, as easily as the police can prohibit someone from playing hackey sack on a sidewalk or chopping wood on a sidewalk. As a hobbyist photographer, you have no more rights to take a photo of a public place than you do to play hackey sack or chop wood in public. All of those things are "mere conduct," and not Constitutionally-protected expression. Furthermore, there doesn't have to be specific law that prohibits public photography for the police to use against you, just as there is no specific law against chopping wood on a public sidewalk in order for the police to quite legally prevent you from doing that.

Get it? Clear??

What I am saying is that has always been the case. You never had a right to take pictures under any circumstances under the first amendment.

GET IT?

Porat didn't change anything. And by the way, they cannot stop you from photographing. You just don't get that. They have to stop you for something else. GET THAT? Why because you are not breaking any law by photographing in public.

[cyrus]

Thanks for clarifications cyrus. The only way one can establish that photography is not "communicative" is by explicit admission from the photographer.

We don't know that though it would be a reasonable guess. The issue has not been spelled out by either a statute or by court cases on how to determine whether/if someone is engaged in "expressive" photography. Certainly if a photographer says he's NOT, then he's not. But is it enough for the photographer to simply SAY that he IS engaged in communicative photography? Couldn't EVERY photographer say that? Does there need to be some level of proof? And who has to prove that he is or isn't - the police or the photographer? etc etc. all unresolved.

[cyrus]

What I am saying is that has always been the case. You never had a right to take pictures under any circumstances under the first amendment.

GET IT?

Porat didn't change anything. And by the way, they cannot stop you from photographing. You just don't get that. They have to stop you for something else. GET THAT? Why because you are not breaking any law by photographing in public.

Really? Porat didn't change anhything? Law reviews and magazine articles are written about it for no reason? LOL

[John NYC]

Really? Porat didn't change anhything? Law reviews and magazine articles are written about it for no reason? LOL

No. You never had that right explicitly. It just had not been tested. Now it has been.

[John NYC]

Really? Porat didn't change anhything? Law reviews and magazine articles are written about it for no reason? LOL

And what it didn't change is that the police could always stop you from photographing by making up some other excuse. They still can so that. They could do it before.

But they STILL cannot stop you from photographing, legally. Porat didn't change that.

[cyrus]

And what it didn't change is that the police could always stop you from photographing by making up some other excuse. They still can so that. They could do it before.

But they STILL cannot stop you from photographing, legally. Porat didn't change that.

You know john I just can't seem to get it through to you so this is my last attempt. YES if you're engaged in "non-communicative photography" (which is something Porat introduced into the law) the police can LEGALLY prevent you from taking a photo, if in their discretionary judgement (that for all practical purposes no court will second guess) they decide that your photography poses some sort of problem that can vaguely be classified as something along the lines of loiterng, causing a disturbance, hindering traffic, or any other similar generic and vague laws that are specifically designed to be vague precisely so that there doesn't have to be a specific law tailored to every conceivable crazy stunt that someone may decide to pull.

Take it or leave it.

[John NYC]

You know john I just can't seem to get it through to you so this is my last attempt. YES if you're engaged in non-communicative speech, the police can LEGALLY prevent you from taking a photo, if in their discretionary judgement they decide that your photography poses some sort of problem that can vaguely be classified as something along the lines of loiterng, causing a disturbance, hindering traffic, or any other similar generic and vague laws that are specifically designed to be vague precisely so that there doesn't have to be a specific law tailored to every conceivable crazy stunt that someone may decide to pull.

Take it or leave it.

Dude. That is exactly what I have been saying, they have to stop you from photographing using some other reason. They cannot say you need to stop photographing. Because there is no law against photographing. They can say, I need you to move along because you are loitering.

This is EXACTLY what I have been saying, and why you have not understood that is beyond me. Photography is not illegal. So no one can make me stop photographing purely because I a photographing. They would have to bring in some other factor where I am breaking a law where they can make me leave, which will have same effect.

No one can arrest me for photographing.

[AF-ULF]

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.

[John NYC]

Dude. That is exactly what I have been saying, they have to stop you from photographing using some other reason. They cannot say you need to stop photographing. Because there is no law against photographing. They can say, I need you to move along because you are loitering.

This is EXACTLY what I have been saying, and why you have not understood that is beyond me. Photography is not illegal. So no one can make me stop photographing purely because I a photographing. They would have to bring in some other factor where I am breaking a law where they can make me leave, which will have same effect.

No one can arrest me for photographing.

And if you don't believe me that this is what I have been saying (because you do seem to be trying to twist my words with almost everything I say)... here are some direct quotes of mine from 11 separate posts trying to get this very point across to you that you just made in your post above...

"No one can stop me from photographing from a public sidewalk as long as I am not breaking any other city ordinances."

"What I said was if you are not breaking any other laws, no one can stop you from taking photos in a public place. And that is true. They can arrest you for something else, but not for that."

"In the United States it is not illegal to take pictures when in a public space if you are breaking no other laws."

"The cops can arrest you for anything BUT THEY CANNOT arrest you FOR making photos in public places. They can arrest you for just standing there. It is called loitering. If you don't have a camera it doesn't matter."

"They can arrest you for any offense they can make fit the situation. You would then have to challenge it later if it was bogus."

"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."

"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."

"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."

"Photography is not illegal in the United States of America. You cannot be arrested (legally) for taking a picture from a public space. You can only be arrested for some other law you are breaking, perhaps while taking a picture."

"And by the way, they cannot stop you from photographing. ... They have to stop you for something else. ... Why? because you are not breaking any law by photographing in public."

"And what it didn't change is that the police could always stop you from photographing by making up some other excuse. They still can so that. They could do it before. But they STILL cannot stop you from photographing, legally."

[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.

Exactly. I wish this post had made it In after mine and was the last ever on this thread.

[cyrus]

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.

Is there a statute that says you can be arrested if you balance turtles on your head whilst riding a unicycle through a sidewalk and shoot lasers into the air? No, there most certainly is no such specific statute. Can you be arrested for it anyway? Sure. Why? Because the cops could arguably say that by engaging in such a course of conduct, you're "Causing a disturbance" (amongst many other things!) Similarly, if you're taking non-communicative photos, you could be arrested FOR taking photos and THUS automatically "causing a disturbance." Your very ACT of taking photos BY ITSELF could be interpretted as the same as "causing a disturbance," just like the mere act of riding a unicyle whilst balancing turtles can be causing a disturbance. There doesn't have to be any other negative consequence from your action - the act itself is sufficient to be a violation of the law. (This is a very basic principle of the law btw. If there's a law that generically says "stealing is prohibited" all you have to do to violate that law is to steal. There is no need for any other thing to be proven - that for example by taking some candy without permission, you caused someone some grief. Why you stole, how you stole, or what you stole would be totally irrelevant. It would be stealing if you took a car, candy or cameras. There's no need for the law to define explicitly the things which could constitute stealing, if taken without permission. The mere act of taking something - ANYTHING - without permission is itself defined as stealing, and threfore a violation of the law, end of story.)

Point is that there doesn't have to be a specific law that explicitly addresses each and every conceivable situtation. It is enough that the existing laws can be interpretted to fit the particular conduct. If your casual, NON-communicative photography is (in the cop's discretionary judgment) "causing a disturbance" etc, and you refuse to abide by the policeman's order to cut it out, yes, you can indeed be arrested. There doesn't have to be any specific law on the books that explicitly bans photography IF non-communicative can be made to fit under an existing vague, generic prohibition, such as the prohibition on "causing a disturbance."


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.

There is no particular need for the legislature to take any such step when existing laws (such as laws that prohibit causing a disturbance) can be quite legally stretched to prohibit to non-communicative photography in public places, and furthermore you would have a very hard time convincing a court that such a law was improperly stretched to prohibit non-communicative photography (since it isn't a constitutional right, the courts will generally defer to the police's judgment.)

To spell it out yet more explicitly for the benefit of JohnNYC: A cop can say non-communicative public photography is itself a cause of disturbance, and since causing a disturbance is prohibited by such-and-such law, therefore you must stop taking photos or go to jail. And whether you really are causing a disturbance or not will practically never be an issue that the courts will bother second-guessing.

Once more: if there is for example an existing law that says effectively that "Causing a disturbance is prohibited" - it really doesn't matter precisely HOW that disturbance was created. Torturing kittens, chopping wood, twirling batons, riding unicyles whilst balancing rabid turtles ... or taking non-communictive photos, all could be prohibited, even if there's no mention of these specific acts in the law. There's no need for the law to specifically prohibit photography, any more than the law would have to specifically prohibit balancing turtles. See? And there is no need for any actual disturbance to happen. Clear??

And since we already have several such vague, generically-applicable laws on the books, then YES, you can indeed be arrested for public, non-communicative photography if one of those laws can be interpretted to apply to your conduct of photography. (in fact since these laws are deliberately designed to be generic and vague, it would not hard to interpret them to fit new sorts of conduct that may not have been considered to be a problem in the past, at the time the laws were drafted.)

[tgtaylor]

Thank you Thomas, I am well aware and quite familiar with the 14th Amendment, which has no particular bearing on the issue.

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?

Thomas

[Steve Smith]

All Cyrus is really suggesting is that it is possible for the US government to change the law.

So what? This is true of most governments in the world but it's not very likely to happen.


Steve.

[cyrus]

Dude. That is exactly what I have been saying, they have to stop you from photographing using some other reason.

No not for some "other reason". For the act itself. If the act of non-communicative photography ifself is deemed by the police to automatically constitute one of the many forms of "causing a disturbance" (for example) then the act of taking photos is itself effectively illegal. There doesn't have to be any thing else or any other reason beyond that. The conduct itself is treated as a violation of the existing law.

Let me give you an example. Suppose there's law that says "stealing is prohibited." Then, all you have to do violate that law is take something without permission. Nothing else need be proven. There doesn't have to be any other reason to bust you. It doesn't matter what you take, how you take it, or why you took it, or if there were any other negative consequences from your act of stealing. The fact that you took something is itself a violation of the law, automatically. ALL The different forms of stealing would be prohibited automatically.

Similarly, if taking non-communicative photography is deemed to be BY ITSELF a "cause of disturbance" - and you engage in non-communicative phtogoraphy, then there is no "other reason" needed to cite you for "causing a disturbance." The act of taking non-communicative photos, by itself, is a violation of the law, automatically. See? All the forms of causing a disturbance - including taking nonc0mmunicative photos - would be prohibited.

So now you're no doubt going to say "But how can any law enforcement official or judge believe that taking a photo is by itself automatically disturbing? How can that ever be?" The point is that they don't have to answer to you about this. What sort of conduct is and is not disturbing is left to their discretion - it is their job to decide this. Because you don't have a constitutional right to take non-communicative photos, you effectively CANNOT challenge their conclusions and opinions. Since you don't have a constitutional right to take non-communicative photos, it isn't any of your business WHY the police deem this to be automatically disturbing. See? Similarly, you don't have a constitutional right to drive so you have no basis to complain if the police decide to close a highway lane beause they think it is dangerous. Whether it is dangerous or not is not left to you or anyone else to decide. It is in their discretion.

(To be more exact, you could theoretically file a law suit agains them, and say "non-communicative photography should not be automatically considered to be disturbing." Then the judge will laugh and rule against you, because in non-constitutional issues, the courts don't tell the other branches of government how to conduct their affairs. Your only option is to go vote for a police commissioner or mayor who also thinks the same as you do on the matter. But In contrast, had you been complaining about a violation of a constitutional right to take communicative photos, then the courts would apply "strict scrutiny" and would probably rule in your favor.)

[cyrus]

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?

Thomas
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.

[cyrus]

All Cyrus is really suggesting is that it is possible for the US government to change the law.

So what? This is true of most governments in the world but it's not very likely to happen.


Steve.

To be exact the change in the law has already happened, and Porat spelled it out in the form of a precedent - you don't have a right now (if you ever did) to take non-communicative photos. There's no need for any other change of law. Right now, the police can quite legally prevent you from taking non-communicative photos even in a public place, and you would have no capability to challenge them in court because none of your recognized rights would have been violated.
Now, if thus far the police have CHOSEN not to use this power, that's a different matter. But they have the power.

[Steve Smith]

Cyrus, I don't think you are right. i.e. I don't think the police have the right to prevent you taking photographs in public, communicative or not (how do they make that judgement anyway?).

If you are right... well, I'm glad that I live in England - The land of the free!


Steve.

[cyrus]

Cyrus, I don't think you are right. i.e. I don't think the police have the right to prevent you taking photographs in public.

Well, I'm not here to convince you otherwise but I can ask you this: if tomorrow a cop gets in your face and tells you to stop taking "non-communicative" photos, who are you going to complain to and on what grounds? Remember, you don't have a right to take such photos so how can any of your rights have been violated?

(The question of who gets to decide is unclear to-be-determined)

And actually I studied UK law too. Not exactly sure if total surveillance and silly "anti-terrorism" laws there make it the land of the free at all.

[Steve Smith]

Well, I'm not here to convince you otherwise but I can ask you this: if tomorrow a cop gets in your face and tells you to stop taking "non-communicative" photos, who are you going to complain to and on what grounds?

I would complain to his superior officer on the grounds that he tried to prevent me from doing something which he had no legal right to prevent me from doing.

If confronted like this I would suggest that he calls into his station for clarification on the matter.

EDIT I wouldn't suggest it, I would demand it.


Steve.

[cyrus]

I would complain to his superior officer on the grounds that he tried to prevent me from doing something which he had no legal right to prevent me from doing.

If confronted like this I would suggest that he calls into his station for clarification on the matter.

EDIT I wouldn't suggest it, I would demand it.


Steve.

The superior agrees with him, and/or says that some vaguely written law such as "disturbing the peace" or "refusal to abide by a lawful command" requires you to do what they say.
Then what?

[Steve Smith]

The superior agrees with him.
Then what?

I would ask him if he intends to detain me. If the answer is no, I would walk away. If the answer is yes then there might be a charge of unlawful arrest heading his way.


Steve.

[rdenney]

I would ask him if he intends to detain me. If the answer is no, I would walk away. If the answer is yes then there might be a charge of unlawful arrest heading his way.

Which the courts are unlikely to respect unless the behavior is egregious and you have proof, such a "communicative" photographer behind a bush recording the scene. And then that would only address that one case.

I think we need a case where Porat is used to justify the prevention of photography, and the photographer is a hobbyist with an established record of displaying his photos, such as on a web page. The existence of that record, which is itself protected as free speech, demonstrates the photogrqpher's communicative intent, even if the implied message is "nature is beautiful; don't screw it up".

Maybe that would provide some precedent on the definition of "communicative".

Rick "still thinking we need the right case" Denney

[Steve Smith]

I think we need a case where Porat is used to justify the prevention of photography, and the photographer is a hobbyist with an established record of displaying his photos, such as on a web page.

I don't think we need to worry about it too much... I certainly don't!


Steve.

[cyrus]

I would ask him if he intends to detain me. If the answer is no, I would walk away. If the answer is yes then there might be a charge of unlawful arrest heading his way.


Steve.

At this point he issues you a citation which requires you to go to court.
Now what?

[BrianShaw]

I don't think we need to worry about it too much... I certainly don't!

Ditto. And as a citizen (US) who has been asked to not take photos in public settings (in both the US and UK) I'm still not concerned that there is a practical and immediate change to the situation.

[cyrus]

Which the courts are unlikely to respect unless the behavior is egregious and you have proof, such [as] a "communicative" photographer behind a bush recording the scene. And then that would only address that one case.

I think we need a case where Porat is used to justify the prevention of photography, and the photographer is a hobbyist with an established record of displaying his photos, such as on a web page. The existence of that record, which is itself protected as free speech, demonstrates the photogrqpher's communicative intent, even if the implied message is "nature is beautiful; don't screw it up".

Maybe that would provide some precedent on the definition of "communicative".

Rick "still thinking we need the right case" Denney

But at best in that situation, all you're doing is showing that he was a communicative photographer. And we already know that communicative photographers are protected by the first amendment. So there would be nothing established by a ruling by the court in the photographer's favor.

What you really need is a non-communicative photog who goes to court, and says that even though he was taking a photo for purely his own enjoyment, THAT TOO should be a protected right. Good luck.

[cyrus]

Ditto. And as a citizen (US) who has been asked to not take photos in public settings (in both the US and UK) I'm still not concerned that there is a practical and immediate change to the situation.

I am surprised by this reaction - it hasn't happened to me so it isn't a problem. Well, other photographers get hassled all the time (http://www.google.com/#sclient=psy-ab&hl=en&source=hp&q=war+on+photography&pbx=1&oq=war+on+photography&aq=f&aqi=g1g-v3&aql=1&gs_sm=e&gs_upl=359l3734l0l3921l18l7l0l0l0l0l1500l2797l0.3.2.1.8-1l7l0&bav=on.2,or.r_gc.r_pw.,cf.osb&fp=d566e0fbd09c8604&biw=1280&bih=822). This isn't a rare occurence. And law-makers in many states are always considering imposing some new sort of additional restriction or outright ban (http://articles.nydailynews.com/2011-05-09/news/29544283_1_photograph-bill-sand-castle)on photographers, even in public. This (http://www.pixiq.com/contributors/248) is an on-going thing (http://www.informationliberation.com/?id=13834).

[BrianShaw]

At this point he issues you a citation which requires you to go to court.
Now what?

Cyrus... what country are you in? Where I live (feel free to see my 'location' disclosure) a citation, AKA "ticket", can be challenged before a judge but that only leads to discussion of "did you do it (that offense -- e.g. local statute, vehicle code violation -- written on the citation) or not." I've never experienced, seen, or heard of someone pulling out precedent, or Constitutional rights, or too much else to fight a ticket. I did see a friend bring an explanation based on geometry, visual fields, etc that the cop couldn't possibly have accurately judged the speed he declared on the citation... and that was good enough to have the ticket expunged.

Did you mean, "At this point he arrests you and the DA presses charges, which requires you to go to court."? Because this is the only situation where I can see your worries coming to reality... except maybe in some backwoods kangaroo court.

[BrianShaw]

I am surprised by this reaction - it hasn't happened to me so it isn't a problem. Well, other photographers get hassled all the time (http://www.google.com/#sclient=psy-ab&hl=en&source=hp&q=war+on+photography&pbx=1&oq=war+on+photography&aq=f&aqi=g1g-v3&aql=1&gs_sm=e&gs_upl=359l3734l0l3921l18l7l0l0l0l0l1500l2797l0.3.2.1.8-1l7l0&bav=on.2,or.r_gc.r_pw.,cf.osb&fp=d566e0fbd09c8604&biw=1280&bih=822). This isn't a rare occurence. And law-makers in many states are always considering imposing some new sort of additional restriction or outright ban (http://articles.nydailynews.com/2011-05-09/news/29544283_1_photograph-bill-sand-castle)on photographers, even in public. This is an on-going thing.

Sure - cops can be @sswholes and stupid laws seem to often be considered. Nothing new there. Just because you can cite a few situations doesn't make them the norm, statistically speaking. People in general can be stupid.

Just last week I was told by a lady at a public park that I cannot take pictures of the Little League game because it is illegal to take picture sof kids in parks. I told her that she was "nuts" and should go away and shut up. She threatened to call the cops... so I offered to dial then number on my phone and let her summon an officer. Then I explained that I was simply taking communicative pictures and I had an audience... to which both she and the cop nodded and graciously let me continue what I was doing. See why I'm not worried. :)

I understand that you are concerned about a long--term threat to photographers rights, but there are so many undefined elements that I'm not yet convinced that a real threat is imminent. I also belive that stupid laws eventually get resolved because not all of our legislators, judges, citizens are really stupid. Only some of them are but there are more who are not. I think the "system" eventually works. Maybe I am deluded, or maybe...

[Steve Smith]

At this point he issues you a citation which requires you to go to court.

I'm in England. It won't happen here. I don't even know what a citation is. If it is the same as being charged with an offence then that has to be a real offence, not one made up by an officer.

In that case I will happily go to court to defend myself.


Steve.

[BrianShaw]

Where I live (feel free to see my 'location' disclosure) a citation, AKA "ticket...

Please let me self-correct. I googled "criminal citation" and discovered that traffic tickets aren"t the only thing in the American (United States) judicial sysem known as a "citation".

[jnantz]

after reading all 174 posts all i have to say is i am glad
my cellphone doesn't have a camera on it ...

[cyrus]

Yes sorry Brian I was being American-centric. A citation is an order issued by the police for you to appear in court and answer to some charge, it can be for traffic violations or for a crime.

[cyrus]

I'm in England. It won't happen here. I don't even know what a citation is. If it is the same as being charged with an offence then that has to be a real offence, not one made up by an officer.

In that case I will happily go to court to defend myself.


Steve.

But its not being "made up". THe cop genuinely thinks your photography is a potential cause for disturbance, and he has the authority to deal with causes for disturbances, therefore he can tell you to stop taking photos, and since you don't have a "right" to take non-communicative photos, you're required to abide by his order. The cop isn't even necessarily being a dick in my hypothetical situation.

[Bob Salomon]

Yes sorry Brian I was being American-centric. A citation is an order issued by the police for you to appear in court and answer to some charge, it can be for traffic violations or for a crime.

That is only one type of legal citation. There are others.

[cyrus]

I also belive that stupid laws eventually get resolved because not all of our legislators, judges, citizens are really stupid. Only some of them are but there are more who are not. I think the "system" eventually works. Maybe I am deluded, or maybe...

Well, as my dear departed Dad used to say, hoping is not a plan. :D

[cyrus]

In any case I hope all of this has shown people just how fragile and limited and subject to restriction the right to take photos really is, regardless of the sweeping generalized statements you see in some "photo rights" pamphlet that state unequivocally that you can take photos in public places. No, you only have a right to take communicative photos in public places, and how or who gets to determine that is still not clear - 150 years after the invention of photography.

[BrianShaw]

The cop isn't even necessarily being a dick in my hypothetical situation.

This is, perhaps, where we don't see eye-2-eye. The vast majority of situations where I've heard of cops telling someone to stop taking pictures has been either because: (1) they want to minimize the chance of being documented doing something they don't want to have to explain, (2) just want to "throw their weight around", (3) are legitimately shy, or (4) have a bonifide need to protect their identity - e.g. undercover police work. The first two are what I believe to be most common based on what I've heard, and the two situations where I believe cops are often being dicks. And more often than not, I believe that most police supervisors and District Attorneys can discern the difference between the real needs of cops (and the citizenry) and a cop just being a dick. I can't vouch for the Judges, though. ;)

My personal experience has only been with citizen requests to stop photographing and in all cases it has either been because they were miguided about their rights and the laws, or they wanted to get paid for having their picture taken (street performer). In all of my person experiences I think the citizens were being dicks. (Thanks for using that expression... it really gets the point across!)

[BrianShaw]

Well, as my dear departed Dad used to say, hoping is not a plan. :D

We might be "brothers of a different mother" then. My dear departed Dad said the same thing. But he also said, "Be sure you are fighting the right fight... and one that you might actually win." I think he learned that lesson as a SeaBee.

[QT Luong]

Then I explained that I was simply taking communicative pictures and I had an audience.

You mean you were already aware of the distinction at the core of this thread ?

[BrianShaw]

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

[Steve Smith]

But its not being "made up". THe cop genuinely thinks your photography is a potential cause for disturbance, and he has the authority to deal with causes for disturbances, therefore he can tell you to stop taking photos, and since you don't have a "right" to take non-communicative photos, you're required to abide by his order. The cop isn't even necessarily being a dick in my hypothetical situation.

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


Steve.

[Steve Smith]

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.

[BrianShaw]

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. If anyone holds up a camera (or maybe even just visibly possess a camera) in any situation a cop chooses to exert his "authority" -- then I'll bet the presumption is that photography happened. What's real or not probably won't be intelligently discussed at that point, nor would the type/intent of the photography be intelligently debated.

[Brian Ellis]

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.

[Bob Salomon]

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.

Very unlikely that he would worry about film today in a handheld camera. And there are ways to take a picture without pushing a button on the camera while holding it to your eye. You, or someone else, could be actually firing the camera through a remote control. Or you may have activated a self timer prior to lifting it to your eye. And lots of pictures of news events today are not captured by a camera but by a phone or a tablet.

[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.

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

[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! :p

[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 :p

[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 :p

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

[cyrus]

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.

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


Steve.

LOL - the mens rea element of loitering is merely "intending to stand around doing nothing." After all, you're not loitering by accident or under compulsion, are you? Is someone forcing you to loiter? Are you "inadvertently" loitering? Sleep walking perhaps?

[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?




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.



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.

The old saying that "you can lead a horse to water but you can't force him to drink" is apt here.

[Steve Smith]

LOL - the mens rea element of loitering is merely "intending to stand around doing nothing." After all, you're not loitering by accident or under compulsion, are you? Is someone forcing you to loiter? Are you "inadvertently" loitering? Sleep walking perhaps?

The mens rea element must be an intent to commit a criminal offence as just standing around doing nothing is not an offence in itself.

The way you word it, the offence would be loitering with the intent to loiter.


Steve.

[Kirk Gittings]

What about in places where you need a permit to photograph-like on the Chicago L? I guess the caveat is the permit. Unlawful to photograph without a permit.

[Steve Smith]

I guess the caveat is the permit. Unlawful to photograph without a permit.

Isn't that classed as private property? In that case the property owners require you to have a permit. That doesn't make it an offence to photograph without one though. It's just a breach of their terms and conditions which they expect you to adhere to.


Steve.

[cyrus]

The mens rea element must be an intent to commit a criminal offence as just standing around doing nothing is not an offence in itself.

The way you word it, the offence would be loitering with the intent to loiter.


Steve.

There is no need for an intent to commit a crime - the necessary intent* is to commit the actus reus (or failure to act when there is a duty to act.)

*of course some crimes don't need an "intent" - negligence is sufficient.

But anyway this is law school 101 stuff and growing apart from the point of this thread.

[cyrus]

Isn't that classed as private property? In that case the property owners require you to have a permit. That doesn't make it an offence to photograph without one though. It's just a breach of their terms and conditions which they expect you to adhere to.


Steve.

I believe the Chicago L is a public mass transportation system. It would be perfectly legal for a city to impose a permit scheme for photography of public places as long as the permit scheme met the necessary constitutional requirements.

[Richard Wasserman]

What about in places where you need a permit to photograph-like on the Chicago L? I guess the caveat is the permit. Unlawful to photograph without a permit.


The Chicago Transit Authority welcomes photography with handheld cameras for non-commercial purposes. Tripods, etc are a different matter, but I have the feeling that they might be pretty easy to work with as the city encourages film productions.

http://www.transitchicago.com/business/photopolicy.aspx

[Kirk Gittings]

The Chicago Transit Authority welcomes photography with handheld cameras for non-commercial purposes. Tripods, etc are a different matter, but I have the feeling that they might be pretty easy to work with as the city encourages film productions.

http://www.transitchicago.com/business/photopolicy.aspx

Hasn't been my experience at all. Found permits all but impossible to get. Maybe if you are a large production company bring allot of revenue to the city.......

[rdenney]

But at best in that situation, all you're doing is showing that he was a communicative photographer. And we already know that communicative photographers are protected by the first amendment. So there would be nothing established by a ruling by the court in the photographer's favor.

What you really need is a non-communicative photog who goes to court, and says that even though he was taking a photo for purely his own enjoyment, THAT TOO should be a protected right. Good luck.

That's what you need to make your point, maybe. What most of us need is a formula for staying within the protection of the first amendment, given that one seems to exist that does not seem overly narrow. We don't have that now because the definitions have not been tested.

Porat didn't establish the communication requirement, it just applied it to photography. I'm with Tuan, it seems to me nonsense that photography is not communicative, unless a photographer really boxes himself into a narrow place. And if he does have no intention at all of others seeing his work, does he really deserve first amendment protection?

Rick "who displays photos, such as they are, on the web" Denney

[cyrus]

BY THE WAY since we're on the topic.

No only is the generic and sweeping statement that "public photography is a right" not entirely correct, ALSO the sweeping statement that "there is no right to photography on private property" is also not entirely correct. In many cities, there are public easements over private property - in other words, places that are technically private, but are open to public pedestrian traffic (http://law.justia.com/cases/federal/appellate-courts/F3/257/937/625295/) or have historically been used for free speech (http://law.justia.com/cases/federal/appellate-courts/F3/308/1114/559068/) - and these places are treated like public places for the purposes of free speech analysis.

[BrianShaw]

What most of us need is a formula for staying within the protection of the first amendment...

http://www.largeformatphotography.info/forum/showpost.php?p=792598&postcount=109

Really, I think this will work!

[BrianShaw]

http://www.largeformatphotography.info/forum/showpost.php?p=792598&postcount=109

Really, I think this will work!

... and, a couple of posts later, I offered a free artists statement to go with the kit!!!

[cyrus]

That's what you need to make your point, maybe. What most of us need is a formula for staying within the protection of the first amendment, given that one seems to exist that does not seem overly narrow. We don't have that now because the definitions have not been tested.

Yes but if you're really engaged in non-communicative photography, and you want to be able to continue doing so, you surely wouldn't want to resort to LYING to the police now, now would you? by saying that you're engaged in communicatve photography when you're not?! Oh! Surely not! :rolleyes:

IMHO whether you want to show your photos to other people or not should be determinative. The idea that the first Amendment only protects communication to other people is bullshit. The philosophical justifications for the freedom of expression include communicative as well as non-communicative ones. Self-realization, autonomy, the right to be left alone the right to think and experience your life - these are also things that frankly are MORE important and thus more deserving of protection than expressing ideas to others.

[rdenney]

I would not be lying. I really do have a web page.

But, again, does a person who shows no pictures to anybody really deserve protection under freedom of speech?

Rick "it means what it means" Denney

[cyrus]

I would not be lying. I really do have a web page.

But, again, does a person who shows no pictures to anybody really deserve protection under freedom of speech?

Rick "it means what it means" Denney

Just because you have a web page is no proof that the particular photo you're taking is intended to be communicative. Anyway, we don't even know for sure that even placing photos on a web page constitutes "communicative" speech (is there a need to direct a photo to a specific audience?)

And yes, like I said the idea of free speech is really more fundamentally about free thought. So whether you intend to communicate to others or not should not be determinative of whether you deserve protection

[Mark Stahlke]

But, again, does a person who shows no pictures to anybody really deserve protection under freedom of speech?Is a photographer who shows no pictures to anybody like an author whose book sells zero copies?

[cyrus]

Is a photographer who shows no pictures to anybody like an author whose book sells zero copies?

Its issue is really couched in terms of having the "intent to communicate", successfully or not.

[John NYC]

You just admitted to the "crime" of loitering (http://en.wikipedia.org/wiki/Loitering).

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

DEFENDANT: Nothing!

COP: Here's your ticket.

In what city Cyrus?

[Mark Stahlke]

Yes, indeed. Intent seems to be the key to the issue. Lucky for us, intent (or lack thereof) is a difficult thing to prove.

Cyrus, I wonder if you'd care to comment on how or if the doctrine of prior restraint would affect this whole issue. Could a photographer being cited or even arrested for a trivial infraction like loitering be considered prior restraint?

PS: Did I get affect right or did I need effect? :D

[tgtaylor]

"...the idea of free speech is really more fundamentally about free thought. So whether you intend to communicate to others or not should not be determinative of whether you deserve protection

Finally!

Thomas

[John NYC]

Yes, indeed. Intent seems to be the key to the issue. Lucky for us, intent (or lack thereof) is a difficult thing to prove.

Cyrus, I wonder if you'd care to comment on how or if the doctrine of prior restraint would affect this whole issue. Could a photographer being cited or even arrested for a trivial infraction like loitering be considered prior restraint?

PS: Did I get affect right or did I need effect? :D

Or better yet here is a good scenario for Cyrus to wax rhapsodic for 30 more posts on... say I get a permit from the New York City MOFTB (Mayor's Office for Film and Television Broadcasting) and on the permit I say that the purpose of my photography is "non-communicative, hobbyist photograph making that will not be published". The permit gets approved, as it would. And then I go out an make my photos. A cop comes up and harasses me for photographing and I show him my permit which legally allows me to exercise the right I do not have anymore.

This thread is just ridiculous at this point.

[dasBlute]

This is the most soul-sucking discussion I've seen in ages.

If [a mighty if], there actually has come to pass a legal precedent which Cyrus so repeatedly but unconvincingly attests - the phrase 'non-communicative photography' is content free, falderal - IF that court decision has changed some aspect of the legality of a behavior that literally billions of people have the ability to do every second of every day via their cell phones, then the precedent will be challenged and changed.

Photography - in itself, like many, many other human behaviors - is not a crime, and if it were ever made a crime, then we've got bigger problems afoot.

Tim [not a lawyer but I know some I like][idea borrowed , er... stolen from rdenny]

[Steve Smith]

PS: Did I get affect right or did I need effect? :D

You got it right!


Tim [not a lawyer but I know some I like][idea borrowed , er... stolen from rdenny]

You need to put your surname at the end.


Steve (who likes correcting people's spelling and grammar and sometimes commenting that it is correct) Smith.

[Tom J McDonald]

You got it right!



You need to put your surname at the end.


Steve (who likes correcting people's spelling and grammar and sometimes commenting that it is correct) Smith.

Tom 'LOL' McDonald.

[patrickjames]

Lets see, this whole thread is about someone who got arrested because he (more than likely belligerently) thought he knew more about the law than he did. He then sues with an apparently bad lawyer and can't even get that right admitting that his images are not communicative in nature when his whole case rests on that one idea. In the end he set some type of precedent by being colossally stupid.

The right he probably should have exercised is his fourth amendment right to shut the hell up. Anyone that has a brain in his head will tell you to never talk to a cop, and that includes the cops.

In the end this isn't going to change anything regardless of what Cyrus thinks. Trying to stem the tidal wave of imagery in the world is impossible.

[Doremus Scudder]

After spending parts of two days reading this entire, and most interesting, thread, I have reached a couple of conclusions.

1. I really can't see how cyrus and JohnNYC differ in anything but semantics... Maybe it's time for a step up to a meta-level here guys. Cyrus wants all photography to be protected as free speech and JohnNYC is pointing out that it isn't. Maybe it's just that cyrus thinks that it was before and JohnNYC doesn't. Not enough of a conflict for all the veiled vitriol here.

2. I don't really feel my rights as a photographer are being violated if a policeman, for good reason, tells me to move along because I'm endangering others (which is the reason for public disturbance laws, etc.). If I have two tripods with a huge camera mounted on them along with a stand for a light reflector, and who knows what else set up on a busy sidewalk (forcing people to walk around and possibly into the street) or in a fire escape, etc. (you get the idea), then I'm disturbing a lot more than someone playing hackey-sack, and I should be told to "move along." Now, if I'm demonstrating for photographers' rights by doing this, then that's another thing (that would be protected under free speech), but if I'm photographing, even for a "communicative" purpose, I think a policeman would be justified in asking me to move on. In other words, I'm more than happy with some photography not being protected under the first amendment.

3. Photography, because of it's "documentary" nature is feared for several reasons. Bad cops fear it because they don't want to be documented using excessive force, or breaking the law in other ways. Companies and other entities fear photography because it might bring to light some illegal or distasteful practice. Some fear it because they think that terrorists are documenting targets, and want to ban photography around "sensitive" places. Many regular citizens feel being photographed in public places (even though perfectly legal) is an invasion of privacy. All these people and more will try to restrict photography in ways legal and illegal to serve their own purpose. Being able to photograph without undue restriction in the public interest is one of the most important reasons why some photography should be protected, either as free speech, or some other way.

4. Free speech, although protected, is not a free pass to break the law in other ways. While the expression may be legal, there may be associated actions that are not. You can certainly scream anything you want at the cops policing a demonstration, but what happens when you throw stones? Similarly, even documentary, communicative photography, although itself legal and protected does not protect the photographer from other crimes, say, breaking and entering, that were committed in the course of "getting the shot."

5. Common sense oftimes gets lost in the legalese, or in the vagueness of a law. For this we need well-trained and cool-headed police who can exercise discretion. This is, unfortunately, not the case too many times. I believe this is where the majority of problems stem from, not from an issue of constitutional law.

6. I will be a "communicative photographer" till the day I die :-)

Best,

Doremus Scudder

[John NYC]

After spending parts of two days reading this entire, and most interesting, thread, I have reached a couple of conclusions.

1. I really can't see how cyrus and JohnNYC differ in anything but semantics... Maybe it's time for a step up to a meta-level here guys. Cyrus wants all photography to be protected as free speech and JohnNYC is pointing out that it isn't. Maybe it's just that cyrus thinks that it was before and JohnNYC doesn't. Not enough of a conflict for all the veiled vitriol here.



Not that I really want to keep discussing this, but the reason for 90 percent of my posts was that Cyrus kept refuting my statement that photography is legal, even after Porat (even "non-communicative" photography). It still is illegal, and that is more than a semantic point. Why? Because while Cyrus thinks you can't defend against false arrest with anything more than the first amendment, you actually can.

[Steve Smith]

Because while Cyrus thinks you can't defend against false arrest with anything more than the first amendment, you actually can.

Surely, the main defence against false arrest is the fact that it's false. i.e. to be arrested, there has to be an arrestable offence.


Steve.

[OldCrow]

So I mistaking asked Cyrus in a private message to educate me on the grounds for his lawsuit against the PATH and his reply was this ...

"So how long have you been off your meds? What do you care what I do with the PATH. Mind your own goddam business."

Clearly he does not grasp that since he has made his lawsuit the center of numerous posts on the internet, he indeed turned it into my business. Let alone the business of many others. He has stated that the case where the photog was arrested for trespassing after being instructed to stop what he was doing and leave. Yet he pressed his luck on what he felt was his protected right, which he was wrong on. Then he in turn tried to sue the company for monetary gain, since he felt they must know they are wrong on account of them not pressing charges and letting him go without further pursuit of the laws that they are entitled to.

Cyrus, can you please give me the case information where this case was used as precedence in that you mentioned. You said it went to the second highest court in the country, and yet it could not be found on any of John Jays law systems as being used. You could just give the docket/case number and state and we should be able to pull it up.

This thread can go on forever. You can say all the useless things you wish about what people believe their rights to be, but the truth is far from that. If you have a law degree then you should be very aware that its all in the final judges or the jury's hands as to if you did or did not break the law. If you are trespassing, then you are asked to leave and you do not... then you go to jail. If you are dumb enough to try to sue and make money for it, then you are just another one of the people that shout fire and throw themselves into the burning building with hopes to make a buck.

Money seems to be the motivating factor in the case you have used as the main focus of your research on this. So I have to ask you if in your lawsuit are you seeking money? If you are indeed seeking money then this shifts from a fight for creative rights and turns to something far more common and lacking of backbone. Far too many people have hidden the pursuit of a cash win-fall against the state or large private companies under the guise of being stifled by them. Acting as if hitting them in the wallet is the only way to hurt them. So are you trying to make any money on this?

There are other ways to make laws change and get amendments to come about. Filing a lawsuit that has no grounds and no one standing behind it is simply a waste of money and time. Like I said to you prior, you need to simply start a motion in the community of photographers with a clear mission and goal. Also if you can actually make a clear and concise statement of what it is you are trying to change or protect, which you have not been able to do at all here then you should be able to gain some backing. Posting on the net and calling names and trying to knock people down for asking you to be open and up front about your reasons for a lawsuit that you claim is trying to protect everyone that has a love and passion for photography that is not for a commercial purpose is not going to help you at all.

You clearly get annoyed that most people do not see the point in your lawsuit and also that no one gives a rats ass that you have a law degree. Simply going to school and paying a ton of money for a piece of paper does not give you a better understanding of the field. If you want to argue that, then you are just talking out your ass. There are millions of people that are far better at subjects that have never gotten degrees then those that have doctorates in those fields.

So stop being a child when people do not see it your way. The case you are using to back your claims to us is simply not a good one on account of the fact the gentlemen broke the law when he did not leave. So anything he was doing had to stop. The judge had to make it clear that in no way was he able to sue since it was not a commercial shoot and not for any reason other then his own hobby.

You are rolling everything under one blanket and hoping that no one will ask questions that shoot holes in theories. False lawsuits costs taxpayers millions to hundreds of millions a year. This is why new laws are being enacted to go after those who file false claims and attempt to sue over them.

So I would simply like a response to these two questions.

1. What is your actual goal for filing a lawsuit against the PATH system. How is it that we are being so wronged by them that there needs to be another lawsuit pressed on them that will indeed be thrown out on account of them being a private company with all rights of a private company to judge what can and can not be done on their own property.

2. Does your lawsuit have any money to be gained by you by suing the PATH? Like I stated earlier, I feel if you are turning this from an attempt to change laws to an attempt to gain money then you are simply mucking up the system and this is not at all about freedom.

I am in no way making this personal or trying to insult you in any way. Even though you have made a few attempts with name calling and childlike antics. I simply would like to hear an educated and clear reason for what it is you are looking for the photography community give you support on.

So if you feel you need to reply with your one line jabs and random silly comments that do not pertain in any way to this subject then please do not waste your time typing. I am really curious about laws and our rights. I spent many years fighting as a soldier for the rights of others and of myself, so when I come across people trying to stand up for their rights or the rights of a community as a whole I am very intrigued. If this is something worth backing then I would give my support 100%. Yet so far there is just nothing worth putting any energy into.

[rdenney]

Just because you have a web page is no proof that the particular photo you're taking is intended to be communicative. Anyway, we don't even know for sure that even placing photos on a web page constitutes "communicative" speech (is there a need to direct a photo to a specific audience?)

And yes, like I said the idea of free speech is really more fundamentally about free thought. So whether you intend to communicate to others or not should not be determinative of whether you deserve protection

Is there case law to conflate "free speech" with "free thought"? I agree that free thought is a basic human right. But we are talking about actions (making a photograph) not about thought. If you are going to attract regular people to your cause, you need to be more concrete. I think that most people would agree that free expression is a component of free thinking, but not necessarily that free thought demands free expression. Whether or not that is already settled law won't help if you don't build general support.

Remember that the people desiring to diminish free photography are not some evil wannabe dictators in some underground bunker somewhere. They are your neighbors, who don't want you to paw at pictures of their kids, or publish pictures of their houses, or show the world the messes in their back yards. The people that own those buildings are not the government, they are just plain property owners that don't want pictures of their property used in ways that hinder their business. In the last 20 years, more basic freedoms have been attacked at the neighborhood level than at the federal level. Just ask amateur radio operators, who, despite federal law allowing reasonable construction of antennas, are repeatedly constrained by homeowner groups and town aesthetics councils from spoiling the view for the neighbors. One reason I can't get decent cellular (or internet) service where I live is because people think their rights are being violated when one of their neighbors leases his land to a cellular company to build an antenna tower. Most people around where I live have to have a permit to remove a tree, even if it has been leaning precariously over their house since the last thunderstorm. If you want to restore an old car, forget doing it in the driveway of most communities near and in big cities. If you want to raise a barn, you'll spend months getting a permit, slowed down by your neighbors who are convinced that your barn will ruin their lives (or at least their property values), and who will fight you unless the barn looks the way they want it to look (which for some may require painting it invisible). I once went before a "historical" review board when I needed to replace the traffic signal controllers in that neighborhood, and they insisted I paint these anodized aluminum cabinets forest green when they had always been silver going back to the first ones in the 1930s (I had pictures to prove it). Their interest was not history, but meeting their idea of what looked good to them that day. (That paint is now peeling badly, 20 years later--paint doesn't stick to anodized surfaces very well). It's easy to blame all this on government or corporations, but the trend to diminish personal freedoms is not unpopular with most people, until it is the particular freedoms they cherish that are under attack.

You are right that we don't know if having a web page constitutes "communicative" speech, though I think it would be hard to prove otherwise. That's why a case testing that definition would be useful, it seems to me. If a person is making a photograph, and claims that all their work has the intention of being communicative, their case would be undermined, it seems to me, by not having any way to display their work. A web page would certainly do that, but so would a photo album on facebook, which already have an established history of providing a reportage value. So would prints hanging on the wall, and albums shown to visitors.

One question is whether a photograph is communicative merely by being communicated. That's where this "particular message" comes into play. But a case cleanly testing this could, it seems to me, draw from the Jackson Pollack example used previously. I think a good argument could be made that any displayed photograph has the intent of being communicative, even if the communication cannot be expressed in words (else, why would an image be needed?). Any protections normally afforded to painters should automatically be afforded to photographers.

Now, could Jackson Pollack have made a painting in that private-but-publicly-accessible space Porat was using? I'd bet not, and I'd further bet that an action he might have brought on the basis of the freedom of speech might have had the same result as with Porat.

You have complained several times in this thread that since Porat first applied the standard of communicativeness to photography, the definition of that communicativeness has been floating free. That's why I suggested cases that would help pin it down. I'd rather define what is speech, if it can be defined broadly enough so that any photographer that cared could envelope themselves in it, because I think that stands a better chance than undoing something like Porat, which seems to me like kicking the dirt at this point, unless we are fortunate enough to have a landmark case come along. Of course, the right case cold be argued for both, it seems to me, so that even a partial victory would be possible.

Rick "wondering how we would move this away from tilting at windmills" Denney

[rdenney]

Its issue is really couched in terms of having the "intent to communicate", successfully or not.

Why would any photographer make a photo that he does not intend to communicate? It seems to me the issue is not intent, but rather the content of what is being communicated and what qualifies as the method of communication. Even bona fide photojournalists on assignment make many more photos than will ever be "communicated"--most will be thrown away. But every photographer has the intent and hope when making the photo that it will be communicated. It is intrinsically a communication medium, unlike behaviors such as wrapping oneself in a flag to keep warm.

We should remember that Porat was about a guy suing for false arrest, not a guy defending himself against conviction. Could that have changed the outcome?

Rick "wondering if Porat's attorneys anticipated and were prepared to argue effectively the issues at hand" Denney

[BrianShaw]

Tom 'LOL' McDonald.

I'm taking a break from the discussion and going out to take some communicative images, but I'm still seeking an audience.

Brian ~be careful, folks, rdenney might have a copyright on this~ Shaw

;)

[cyrus]

Lets see, this whole thread is about someone who got arrested...
The right he probably should have exercised is his fourth amendment right to shut the hell up.

5th Amendment. The right to remain silent is the 5th not the 4th.

And the particulars of the Porat case are not relevant (Porat probably was not trespassing, legally speaking, btw - which is why he was not prosecuted.) The issue is whether "nonexpressive" photography - by hobbyists, for their own enjoyment - is a form of protected speech.

[John NYC]

It still is illegal, and that is more than a semantic point. Why? Because while Cyrus thinks you can't defend against false arrest with anything more than the first amendment, you actually can.

Whoops!!!! This should say "it still is LEGAL"

[BrianShaw]

The right he probably should have exercised is his right to shut the hell up. Anyone that has a brain in his head will tell you to never talk to a cop, and that includes the cops.

AMEN. (written using my God-given rights that are, hopefully, supported by the US government.)

[cyrus]

Why would any photographer make a photo that he does not intend to communicate? It seems to me the issue is not intent, but rather the content of what is being communicated and what qualifies as the method of communication. Even bona fide photojournalists on assignment make many more photos than will ever be "communicated"--most will be thrown away.

According to the courts if you just take photos for your own enjoyment, you are not intending to communicate. You're just taking the photos for your own enjoyment. Expressing things to yourself apparently doesn't count. There are other cases that say this too.

In Porat's case, his attorney had to follow what his client said. If his client says that he was taking photos for his own enjoyment -- which is what Porat told the security guards when confronted -- then the attorney could not change that argument in court just to make it more likely to succeed. That would be lying.

The photojournalists may take more photos than they ever will actually use, but they still "intend" to use at least some of them to communicate....which is why they're photojournalists in the first place.

[cyrus]

Whoops!!!! This should say "it still is LEGAL"

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

[rdenney]

Is a photographer who shows no pictures to anybody like an author whose book sells zero copies?

That a false choice, but it brings up a good point.

If writing is inherently a communications medium (and I think it would be hard to prove otherwise), then how can a writer not have a communication intent? The diary is the only plausible example, but even then, the diarist knows two things: 1.) diaries are sometimes published, and 2.) the diary communicates the author's thought from his mind to the paper. Once it is on paper, it has a life of its own.

So, let's say a photographer has no intention of showing anybody the pictures. Even those images are recorded in any way, they are communicated from the author's mind to the medium. They may not be read for a hundred years, and at that time may be revelatory--even family vacation snapshots. The point of freedom of speech is to keep the government from throwing people in jail for expressing their political opinions. King George had been doing that, and that's what the founders were protecting themselves from. "Political" in this case is not, of course, limited to party election politics, but rather to any activity which affects the people. How does one draw a boundary around that when discussing a medium that exists solely to be communicative? Isn't that the principle that protects Jackson Pollack?

So, the answer to my question about the rights of the photographer who shows no prints is: The only photographer who has no communicative intent is one who has no film or memory card or means of transferring the image to a viewable state in his camera. So, is somebody who just playing with an empty camera deserving of first-amendment rights? I would argue that such a person is not, in fact, a photographer at that moment.

Rick "still finding value in this discussion, despite everything" Denney

[cyrus]

Finally!

Thomas

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.

[cyrus]

That a false choice, but it brings up a good point.

If writing is inherently a communications medium (and I think it would be hard to prove otherwise), then how can a writer not have a communication intent? The diary is the only plausible example, but even then, the diarist knows two things: 1.) diaries are sometimes published, and 2.) the diary communicates the author's thought from his mind to the paper. Once it is on paper, it has a life of its own.

So, let's say a photographer has no intention of showing anybody the pictures. Even those images are recorded in any way, they are communicated from the author's mind to the medium. They may not be read for a hundred years, and at that time may be revelatory--even family vacation snapshots. The point of freedom of speech is to keep the government from throwing people in jail for expressing their political opinions. King George had been doing that, and that's what the founders were protecting themselves from. "Political" in this case is not, of course, limited to party election politics, but rather to any activity which affects the people. How does one draw a boundary around that when discussing a medium that exists solely to be communicative? Isn't that the principle that protects Jackson Pollack?

So, the answer to my question about the rights of the photographer who shows no prints is: The only photographer who has no communicative intent is one who has no film or memory card or means of transferring the image to a viewable state in his camera. So, is somebody who just playing with an empty camera deserving of first-amendment rights? I would argue that such a person is not, in fact, a photographer at that moment.

Rick "still finding value in this discussion, despite everything" Denney

Well all I can tell you is that the courts would say the question is whether your conduct contained,

"an intent to convey a particularized message ... and [whether] the likelihood was great that the message would be understood by those who viewed it."


and furthermore the courts have said that taking photos for your own enjoyment does not qualify as intending to convey a message etc etc.

I don't think anyone argues that playing with an empty camera makes you a photographer or not. I'm not even sure that writing for your self would qualify as a form of protected speech even though you characterize writing as being "inherently communicative" -in fact this was a point in the law review article I linked to earlier in this thread which said that according to this view of free speech, there is no right to write things in your own diary (since diaries are not intended to communicate messages to an audience.)

[cyrus]

By the way if you want an amusing application of the law on non-communicative speech: You don't have a First Amendment right to bark at a police dog (http://www.loweringthebar.net/2011/07/judge-no-first-amendment-right-to-bark.html).

[BrianShaw]

... :)


(woof)

[cyrus]

Is there case law to conflate "free speech" with "free thought"? I agree that free thought is a basic human right. But we are talking about actions (making a photograph) not about thought. If you are going to attract regular people to your cause,

I'm not engaged in any kind of "cause" - I'm just pointing out a curiosity about the law that most people do not know about and wrongly assume to be a certain way. For the purposes of my particular lawsuit, I was engaged in communicative speech and there's no problem there.

And FYI there's nothing in the constitution that explicitly recognizes a right to privacy, a right to have and raise children, or many other rights are we take for granted. The courts have nontheless recognized the existence of these unwritten rights, so there's no reason why a general right to free thought cannot also be recognized, and also a right to take photos or draw pictures for your own enjoyment cannot be also protected. See, one of the things they teach you in law school is that the Bill of Rights is not meant to be an exclusive listing of all the rights you have.

[OldCrow]

5th Amendment. The right to remain silent is the 5th not the 4th.

And the particulars of the Porat case are not relevant (Porat probably was not trespassing, legally speaking, btw - which is why he was not prosecuted.) The issue is whether "nonexpressive" photography - by hobbyists, for their own enjoyment - is a form of protected speech.



Okay so you use that case as the grounds for the information you are trying to confer, and yet you now say it is no longer relevant? He was not prosecuted on account of it being a waste of time and money on the side of the owners of the land.

Porat was falsely suing using photography as the means for his his loss of money and the grounds for seeking a cash reward. Yet the judge needed to make it clear that when he was arrested he claimed to not be there as a commercial or professional photographer, and therefore making himself into a "Hobbyist". The judge used the term "Non-expressive" to state clearly that Porat had zero grounds to try and claim that his trespassing arrest was brought upon him on account of his being there photographing the place. Cyrus you are clearly trying to shift and move the facts of the Porat case around at your whim to make it suit what you need it to when it pertains to your defense.

Why are you the only one trying to use a case where a clown got arrested for not realizing the laws and not shutting up and actually trespassing. You do know that in some states a No trespassing sign comes with a legal right (that is protected by the constitution) for the land owner to ask the person to remove themselves from their land once and only once before the land owner has the lawful right to open fire on the trespasser. So Porat should be glad that they simply had him arrested and then were nice enough to not bother with pressing charges.

Our rights as photographers do not extend to lands that are private or are protected under the securities acts of our government. There are many many places that we have zero rights to take photos and the use of lethal force is permitted to uphold their stance. Go out to Groom lake and try to snap a few quick photos past the orange markers and tell them its going to be "communicative". There are many other places like that.

You just seem to want to wave a flag and scream the sky is falling. We have many rights in place that are indeed protecting us and many others that are stopping us. Your lawsuit and the ones you have used as defense for your point have nothing to do with any of the laws that stand in our way. You are not going after the laws themselves, you are going after one company. WHat does that do to change anything?

I like knowing that no matter what and who they are, they broke the law and they got arrested. I also like knowing that a judge laughed at the clown for trying to sue for it. His creative freedoms were not being impinged upon. He was where it was asked to not be, and then he would not leave when the owner said to.

Do you have a real case showing a photographer that did not break another law while doing photography and was arrested solely on the grounds of photography? Yes I mean a clear cut legal case that was upheld by a judge in a court of law? It can be from any country, anywhere on the planet... heck even cite a case on Mars for all I care. One where a photographer was not breaking any other laws and got arrested and was charged with "Photographing".

So how much are you suing the PATH for anyway?

[cyrus]

This is the most soul-sucking discussion I've seen in ages.

If [a mighty if], there actually has come to pass a legal precedent which Cyrus so repeatedly but unconvincingly attests - the phrase 'non-communicative photography' is content free, falderal - IF that court decision has changed some aspect of the legality of a behavior that literally billions of people have the ability to do every second of every day via their cell phones, then the precedent will be challenged and changed.

Photography - in itself, like many, many other human behaviors - is not a crime, and if it were ever made a crime, then we've got bigger problems afoot.

Tim [not a lawyer but I know some I like][idea borrowed , er... stolen from rdenny]


The precedents already exist. Porat was one of them. And hobbyist photographers get hassled by the cops all the time - it is a common occurrence. And most of them will be surprised to learn that despite what they were told in the past about having a First Amendment right to engage photography in public places, they do not - not if they're mere "hobbyists" (which most of them are.)

It is indeed ironic that this limitation on photography exists at a time when, as you way, billions of people are armed with cameras, but hey, I'm just reporting what the courts have said. I'm not the one making the law so don't blame me.

(In fact I find it upsetting that these stupid laws are far more likely to be applied to people like me who engage in photography with large bulky film cameras and won't be applied to the digital camera crowd.)

[Steve Smith]

The precedents already exist. Porat was one of them. And hobbyist photographers get hassled by the cops all the time - it is a common occurrence. And most of them will be surprised to learn that despite what they were told in the past about having a First Amendment right to engage in casual, recreational photography in public places, they do not.

But they do have the right to complain about that harassment and an expectation that such a complaint will be investigated.


In fact I find it upsetting that these stupid laws are far more likely to be applied to people like me who engage in photography with large bulky film cameras and won't be applied to the digital camera crowd.)

But which specific laws are you referring to?


Steve.

[cyrus]

So how much are you suing the PATH for anyway?

Billions and Billions! I'm gonna get rich! NEEENER NEENER
No go back to taking your meds and stop sending me insulting private messages

[OldCrow]

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.

Wait are you really trying to poke a jab at someone for quoting random bits of things while trying to make a point? You have sent and posted more links to useless facts and cases that you now say have nothing to do with anything now.

So you think freedom of thought is what is covered under the terms freedom of speech?

Photography is not considered "Speech" because it does not clearly communicate a point. It is a "method of capturing the likeness of a subject". Therefore it can be seen in many ways and does not fall under speech. Speech is "Information or opinion conveyed in a spoken or written language that is commonly and globally known".

So freedom of thought is already instilled in all of us, clearly demonstrated by the thought you are having right now as you read this. We do not have the right to display or capture subjects that we have no legal right doing so of. Porn is censored for a reason and can not be shot not shown in public. That is a type of photographic process. It is censored for moral reasons. There is then the fact you can not photograph around military bases or schools, yes they are both on the same level under the pretext of the laws pertaining to photographic freedoms of public owned properties. One is for the protection of soldiers and the other is for protection of children. Yet many times you can go and photograph both of them, and when stopped you can explain in a professional and respectful way that you are simply doing so for artistic content and if you are able to convey your point to the authorities they will let you be without incidence.

Now if you are an ass and fight them over it and claim protection under laws that do not protect you then you are going to be taken to jail. Which you should be.

So you are "Free" to think what ever you wish, you are not free to throw it in peoples faces, nor are you free to take any photo anywhere. The laws are what they are and for the most part none of the photographers in the world are ever touched by them. So what are you expecting from this post?

Honestly you have not once answered any of the questions focused on what you are expecting and or wanting. No one will back you without reason or some material to back your claims.

[cyrus]

But they do have the right to complain about that harassment and an expectation that such a complaint will be investigated.



But which specific laws are you referring to?


Steve.

"harassment"? A cop telling you to move along because in his opinion you're causing a disturbance due to your non-communicatve photography is not "harassing" you - he's quite legally doing his job. And in fact he may be quite right - your non-communicative photography may in fact be "causing a disturbance". THe point is that in the past, merely "causing a disturabance" was not a good enough reason to prevent someone from taking photos - because taking photos was assumed to be protected by the First Amendment. At worst you may have been subjected to a permit requirement in order to minimize that disturbance, but you still had a right to take the photos. However, if non-communicative photography is merely conduct, and not expression at all, then you don't have a right to do it, at all.


Laws such as the decision in Porat, for example (yes, cases are laws just like statutes and regulations) and all the other generic laws such as "causing disturbance" laws that can be applied to prohibit casual photography.