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Thread: Your right to take photographs is in v. serious danger

  1. #21

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    Re: Your right to take photographs is in v. serious danger

    This is the relevant language from the case of D'Amario v Providence Civic Center Authority (639 F Supp 1538)

    In the plaintiff's view, the first amendment is his free pass into the [City] to permit his photographic endeavors to proceed. Any cognizable claim in this regard must, however, prescind from his membership in the fourth estate, invoking the freedom of the press: D'Amario's first amendment right to freedom of speech is not directly implicated.

    To be sure, entertainment is a form of protected speech, and the right to disseminate or display photographs is likewise protected. Yet, D'Amario does not claim that the [city] has abridged his right to sell tintypes or to entertain his readership with whatever photographs he may have secured, or that his films have been censored or suppressed. At bottom, he asserts that [the city] has restricted his conduct, thereby limiting his access to the materials which he desires to record photographically. In this context, a court must readily distinguish between expression and action, for only the former is entitled to first amendment protection under the Freedom of Speech Clause.

    The activity in which D'Amario seeks to engage does not partake of the attributes of expression; it is conduct, pure and simple. This is not a case where the plaintiff desires to “express” himself by displaying the existing fruits of his photographic endeavors, rather, D'Amario wishes to “do” something, namely, to enter the Center and to photograph subjects of his own choosing while they are performing.

    Consequently, despite the anfractuous reasoning utilized by the plaintiff's counsel in an effort to distort the basic shape of the case, the issue before this court is not whether the plaintiff may be restricted from communicating or displaying information he has already garnered. His problem is precisely the opposite: he has come away empty-handed, having been denied license to let his camera rove at will. Seen in its true perspective, the issue is whether a photographer (or photojournalist) may have special rights of access to “information,” that is, to subjects which he desires to photograph. The distinction is a critical one.
    I have highlighted (bolded) the relevant sentences. The judge makes a clear distinction between 1-"disseminating and displaying" photos versus 2-getting access and "recording" photos. The first is protected, the second is not.

    This langauge can be read narrowly or broadly. If read narrowly, the judge is saying that the unprotected "conduct" is accessing the facility. If that's all, then this case is indeed simply a "right to access" issue and nothing to worry about much.

    However, if the judge's language is read broadly, to imply that the unprotected "conduct" is the act of taking photographs as well, .... well, then we're screwed. Note that subsequent cases have interpretted it this way:

    Photographing, itself, is conduct with limited First Amendment protection...
    (Showalter v. Brubaker 493 F.Supp.2d 752
    E.D.Pa.,2007.)

  2. #22

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    Re: Your right to take photographs is in v. serious danger

    Quote Originally Posted by Lyle Aldridge View Post
    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.
    This is generally accurate but a side issue and I don't want to distract from the main issue. The rule applies only to parties involved in litigation. However, on this forum we're not involved in litigtation so I can hold back info.
    Last edited by cyrus; 14-Sep-2007 at 11:02.

  3. #23
    Large format foamer! SamReeves's Avatar
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    Re: Your right to take photographs is in v. serious danger

    I hope there is some common sense taken in when making your photos. If you stick out like a sore thumb say at a refinery, airport or military installation, well…yeah you're going to get hasseled. However I'm not worried at all about taking your view camera into the street or backcountry yet. Do what you like as long as it's in common sense.

  4. #24

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    Re: Your right to take photographs is in v. serious danger

    Quote Originally Posted by cyrus View Post
    Not yet.
    You can say "not yet" about pretty much anything. There are many, many, problems out there that are "noise"; most of which will never rise above the "noise" level. We have to be selective about which ones have some likelihood to become rise above the noise before we devote our time and effort to them because we can't address them all. I'm thinking I have bigger fish to to fry. I'm certainly nowhere near making an announcement like "Your right to take photographs is in v. serious danger". I actually figure there is a good chance this is just a troll; in which case I have made myself the sucker.

  5. #25

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    Re: Your right to take photographs is in v. serious danger

    Quote Originally Posted by Greg Miller View Post
    You can say "not yet" about pretty much anything. There are many, many, problems out there that are "noise"; most of which will never rise above the "noise" level. .

    Look I'm just tell you the law as it is now according to at least 1 Federal district court judge. I am saying that this view of the law of photography may become more common in other courts in other states - and has been adopted in 1 other district court in anopther state (at least as dictum.)

    There are previous cases that can be interpretted to go the other way (probably the case of Spencer Tunick in NYC - I'm looking into it right now)

    But, if you don't think that's a danger and worthy of discussion, that's your choice. You don't need to explain yourself - nor is there any need to call me a troll.

  6. #26

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    Re: Your right to take photographs is in v. serious danger

    Quote Originally Posted by SamReeves View Post
    I hope there is some common sense taken in when making your photos. If you stick out like a sore thumb say at a refinery, airport or military installation, well…yeah you're going to get hasseled. However I'm not worried at all about taking your view camera into the street or backcountry yet. Do what you like as long as it's in common sense.
    If photography is your right, then it doesn't matter whether you "stick out like a sore thumb" or not. The police can't hassle you because in their opinion you "stick out"

    But right now we're talking abotu whether photography is a right at all - as this case claims it is not.

  7. #27
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    Re: Your right to take photographs is in v. serious danger

    I dont think its fair for anyone to tell me you can display your photographs but not take the pictures, So how in the he** are you suppose to display anything if your not allowed to take any pictures now,and you cant make a living by selling them... I dont think any of it is fair! the govt always changing policy for themselves not the people..
    "Remember" the saying "FOR THE PEOPLE BY THE PEOPLE"? Or something like that... Yosemite is a public place paid for by our taxes isnt it? My 2cents worth...

  8. #28

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    Re: Your right to take photographs is in v. serious danger

    Quote Originally Posted by cyrus View Post
    But, if you don't think that's a danger and worthy of discussion, that's your choice. You don't need to explain yourself - nor is there any need to call me a troll.
    I'm just exercising my right to self expression. So I'm confused now. Are you for it or against it?

  9. #29

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    Re: Your right to take photographs is in v. serious danger

    I'm against it of course.

    Seriously, if this proves anything, its that you can't take anything for granted & you always have to stay vigilant at invasions of rights.

    Let me give you some more eye-opening facts.

    In some states in the US, it is ILLEGAL to photograph nude children - EVEN if its your own kids in a totally innocent, non-sexual manner. Yes, you CAN (and some people HAVE) gone to jail for the mere act of taking a photo of their nude toddler. Jock Sturges WOULD have gone to jail in those states.

    Here's something else:

    The First Amendment only protects COMMUNICATIVE EXPRESSIONS TO OTHER PEOPLE - if you're taking a photo purely FOR YOUR OWN ENJOYMENT, you don't have a First Amendment right. The right only applies if you intend to sell or display it to an audience.

  10. #30
    Geos
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    Re: Your right to take photographs is in v. serious danger

    Cyrus, GO GET 'EM!!!!

    Here are some of my very biased thoughts: If it is okay to image with one's eyes, and remember a scene, why not in a more permanent fashion; for example, photography, painting, or sculpture. Why is it bad to photograph nude children, but they can be looked at or painted?

    The same thing goes for guns. Why is the second amendment crystal clear, yet one can't have a gun in NYC without being subject to arrest and prosecution? One of the answers lies in fear. An attorney I know indicated his concern about being subject to arrest if argued correctly. That is, because the root of the second amendment lies in ensuring American citizens have the tools necessary to overthrow their own government (as Americans did in the 1770s), it would appear rebellious even to say such a thing. So, even the NRA resorts to bribery (giving campaign contributions) rather than indicating/arguing the truth.

    I think that the fear-photography argument can also be made. As far as the law is concerned, this might be a more difficult argument to make. After all, the British didn't try to take our paint brushes away during the rebellion. Therefore, the founding fathers neglected to directly protect artistic expression, including taking into account technological innovations.

    That being said, will we be able to own ray-guns when they come into being? I think that rights should march hand in hand with technology. If I can beat someone with my fists, why not shoot them with a gun? Likewise, if I can see them, why can't I record them with a charcoal stick or a camera?

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