Your right to take photographs is in v. serious danger

[claudiocambon]

The laws already allow for privacy protection and intellectual property protection and "hindering" problems (like tripod permits.) These are not the issue.

The issue is if taking photos is just "conduct" - then taking photos OF ANYTHING can be banned, whether movie stars, or just trees and rocks. Its not just pushy paparrazi who will be effected - it is ANYONE with a camera. You don't have a constitionally-protected right to take a photo, anywhere or of anyone, because the court has ruled that taking photos is just conduct and not expression. The govt may now regulate (or outright ban) photography just like any other form of conduct, and you can't challenge it as a violation of the First Amendment.

Spot on. Granting the government discretion, or rather power over this right is in fact the issue, and given how much discretion they have granted themselves in this country over individuals, especially our executive branch, I think it's a highly bad idea to give them any more. Across the world governments are consolidating power at the expense of individual rights by invoking all sorts of prerogatives to combat "emergencies," such as the US with the Patriot Act, and, therefore, it is more important than ever to assert the rights of individuals to balance this out.

[j.e.simmons]

You're on the wrong track. The right to take photographs IN A GIVEN PLACE is rooted in property law and specifically trespass, not in the First Amendment. The right to take photographs OF something is based on several aspects of the law, depending on the subject. For instance, there is a specific section in copyright law in the US that permits photographing of completed buildings. The use of images, for instance celebrities - or anyone for advertising purposes - is restricted in several ways.

It's a very complex issue and varies by local jurisdictions.
juan

[Lyle Aldridge]

Cyrus, it looks to me like you're trying to plow new ground, not seeking to protect an existing right. As much as I sympathize, I have difficulty with the concept that taking a photo is an act of expression, rather than conduct. I can't see the courts holding, for example, that the First Amendment means a sculptor has a right to haul a huge block of granite into a public park and sculpt a statue there. And as you've probably noticed by now, federal courts have always banned photography in federal courthouses, so you're going to be arguing against the "house rules" of the very place where the argument would likely take place.

All that being said, however, if you happen to be in the Ninth Circuit, your case looks better. In ACLU v. City of Las Vegas, 466 F.3d 784 (9th Cir. 2006), that court held that First Amendment protections extended to the conduct of putting up tables in a public place, when the tables were used to "facilitate" the protected activities of distributing leaflets and seeking signatures on petitions. Evidently, the Eleventh Circuit has a similar opinion, Int'l Caucus of Labor Comms. v. City of Montgomery, 111 F.3d 1548 (11th Cir.1997). Under that theory, I think there is a stronger "facilitation" argument for photography than there is for "tabling," since taking a photograph is essential to the expressive activity of displaying the photo, whereas "tabling" merely makes leafleting and signature gathering more convenient (and only for the people engaged in it, not for others around them).

[Lyle Aldridge]

I wish there was a legal mind out there who is into photography and whom I could trust not to "give away" the issue.

BTW, that's not really a legitimate concern. Despite the nonsense you see on TV, one cannot "hide the ball" in litigation. The "other side" is fully entitled to know your factual and legal theories well before you present them to a judge or jury. Keeping arguments "secret" usually means you forfeit the right to make them, and it may require you to write a check to your judge's favorite charity.

[Bruce Watson]

Apart from the whole issue of "right to access", the judge makes a distinction between the TAKING of a photograph and the DISPLAY/SALE of photographs.

I make photographs. The word "take" is misused here. The act of making photographs is an act of creative expression for an artist.

The argument is specious. It's like saying it's OK to have books but not OK to write books. Silly.

[cyrus]

Cyrus, it looks to me like you're trying to plow new ground, not seeking to protect an existing right. As much as I sympathize, I have difficulty with the concept that taking a photo is an act of expression, rather than conduct. I can't see the courts holding, for example, that the First Amendment means a sculptor has a right to haul a huge block of granite into a public park and sculpt a statue there. And as you've probably noticed by now, federal courts have always banned photography in federal courthouses, so you're going to be arguing against the "house rules" of the very place where the argument would likely take place.

All that being said, however, if you happen to be in the Ninth Circuit, your case looks better. In ACLU v. City of Las Vegas, 466 F.3d 784 (9th Cir. 2006), that court held that First Amendment protections extended to the conduct of putting up tables in a public place, when the tables were used to "facilitate" the protected activities of distributing leaflets and seeking signatures on petitions. Evidently, the Eleventh Circuit has a similar opinion, Int'l Caucus of Labor Comms. v. City of Montgomery, 111 F.3d 1548 (11th Cir.1997). Under that theory, I think there is a stronger "facilitation" argument for photography than there is for "tabling," since taking a photograph is essential to the expressive activity of displaying the photo, whereas "tabling" merely makes leafleting and signature gathering more convenient (and only for the people engaged in it, not for others around them).

Thanks I will of course have to see how circuits deal with things.

I am not plowing anything - I am pointing out a fact that many people seem not to realize. The quote from the NPPA site for example claims that there's a constitutional right to make a photo, but there isn't. There's only a constitutional right to sell/display photos. According to the D'Amario decision, "making" photos is not a form of expression and so it is not subject to the First Amendment.

As for the blocks of stone etc. argument - like I said that's not the issue. There are already all sorts of legitimate laws that restrict photography when there are legitimate reasons for doing so. These are known as Time/Place/Manner restrictions. FOr example, you can't set up a tripod on a public street because it would impede traffic. Etc etc I'm not claiming an unlimited right to go anywhere and interfere with anything - I'm saying that you do not have a constitutional right to take photos despite what everyone assumes - not even in a public place.

If the act of taking a photo is deemd a "facilitation" of expression then would of course be less protected than if the act of photography were deemed to be expression.

[cyrus]

I make photographs. The word "take" is misused here. The act of making photographs is an act of creative expression for an artist.

This is potentially a good argument but there are many cases that claim an expression for your own benefit does not count. You have to be expressing to someone ELSE for the FIrst Amendment to kick in. The point is to protect COMMUNICATION not self-expression for your own benefit. So, whatever you're expressing for your own benefit as you "make" a photograph doesn't count.

I know its silly - and it is also scary.

[cyrus]

It's a very complex issue and varies by local jurisdictions.
juan

No, we're not talking about the trademark trespass etc issues - we're only talking about the First Amendment issue which applies to all of the United States. According to this case and its progeny, you do not have a right to TAKE photos - anywhere, by anyone, of anyone. The taking of photos is not a right protected by the First Amendment. It can therefore be regulated or outright banned without any First Amendment implications.

If the city of NYC tomorrow decides that you need get a license, pass a drug test, and have to pay a tax in order to take photos of your own foot, on the street, using your handlheld 35mm point-and-shoot camera, you can't complain that your right to freedom of expression has been violated, because the act of photography is not "expression" - according to these cases.

[Greg Miller]

I think it is important to put things in perspective. I can only tell you my personal perspective and experience. I am working on a project that has me photographing on a daily basis and involves conspicuously shooting (tripod , big photo backpack) in the New York City area, greater NYC metro area, and Hudson Valley area. I am on a almost daily basis shooting hat could be considered sensitive things like the George Washington Bridge, and Indian Point Nuclear Power plant, and doing this in both nighttime and daylight hours. And I have been doing this for a few months now.

Not once have I been approached by anyone questioning me or trying to run me off. The only time I have had any problems is where I climbed over a safety barrier to get a better angle. This was in pre-dawn hours and near the GW bridge. The cop just signaled for me to get back on the other side of the barrier and wen on his merry way.

This is purely anecdotal evidence, but I do think that if this was a major problem I would have had more interesting stories to tell you,.

Does the problem exist? Most likely. Is it a big enough problem for me to get my underwear in a knot? Not based on my experience.

[cyrus]

Does the problem exist? Most likely. Is it a big enough problem for me to get my underwear in a knot? Not based on my experience.

Not yet.