Re: Law on photography update
Quote:
Originally Posted by
cyrus
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
Re: Law on photography update
Quote:
Originally Posted by
cyrus
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
Re: Law on photography update
Quote:
Originally Posted by
Tom J McDonald
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
;)
Re: Law on photography update
Quote:
Originally Posted by
patrickjames
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.
Re: Law on photography update
Quote:
Originally Posted by
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"
Re: Law on photography update
Quote:
Originally Posted by
patrickjames
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.)
Re: Law on photography update
Quote:
Originally Posted by
rdenney
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.
Re: Law on photography update
Quote:
Originally Posted by
John NYC
Whoops!!!! This should say "it still is LEGAL"
It wouldn't be "false arrest" if you're refusing a lawful order
Re: Law on photography update
Quote:
Originally Posted by
Mark Stahlke
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
Re: Law on photography update
Quote:
Originally Posted by
tgtaylor
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.