Your right to take photographs is in v. serious danger

[Lyle Aldridge]

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 about whether photography is a right at all - as this case claims it is not.

Well, it seems to be pretty well-established that it's not - at least to the extent that "photography" means the making of the photo. No right is being invaded or eroded, because the "right" touted by ASMP has never actually existed. That ASMP has overstated things in a way that would serve their interests is not especially surprising, is it?

That D'Amario opinion (one of several, since Mr. D'Amario has been quite litigious) is often cited as a leading authority on the subject. Since it was rendered, it's been repeatedly cited by other courts as well-reasoned, and not questioned even once in any published opinion or order. In parts of the opinion that come after what you quoted above, however, the judge did draw a distinction between a general First Amendment right to photograph and a right to photograph newsworthy events.

That later part of the opinion was cited and relied on very recently by the Sixth Circuit in S.H.A.R.K. v. Metro Parks Serving Summit County, --- F.3d ----, 2007 WL 2403663 (6th Cir., Aug. 24, 2007). You might find that opinion of interest. It was brought by an organization that had placed concealed automatic cameras on public park land while the park agency was culling the deer herd. The organization ostensibly had a mission of exposing inhumane practices. Rangers found the hidden cameras and removed them, and S.H.A.R.K. filed suit alleging that their First Amendment rights had been violated. I won't spoil the experience by telling how they fared.

[Greg Miller]

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.

So let's put this into perspective. Let's see some statistics. How many people per year get arrested for taking a photo? How many people are asked when taking a photo whether it is for their own enjoyment or if they intend to sell it, and then are prevented form taking that photo because it is purely for their enjoyment only.

There are plenty of stupid laws in the books. But how many of those are enforced by the police, and then prosecuted in the courts? Yes - it happens. I'm sure you will quote something for us to read. But citing one or two examples doesn't prove much other than proving that sh*t happens.

You are quoting laws and amendments without providing any perspective on what the real world significance is.

But, oh yeah, my opinions are not welcome here.

[Ed Richards]

> you don't have a First Amendment right. The right only applies if you intend to sell or display it to an audience

Unless it is a religious rite. ULF guys might make that fly easier than the rest of us.:-) I think I see a new principle in the dogma of the Universal Life Church.

More seriously, I think the state law attemps to protect the privacy of individuals in public spaces are a bigger problem. These laws would affect the right to display your art, not just to take it. We already have this in the celebrity's right to control their images outside of the news context.

[Paul Fitzgerald]

Hi all,

I'm confused again, surprise.

Mr. D'Amario tried to gain access, with a camera, to a concert with a 'no cameras' clause in the contract.

The contract was acted upon by at least 1 interested party, the group playing, so it's binding.

The judge politely told Mr. D'Amario to whistle 'Dixie'.

Where's the problem?

"you don't have a First Amendment right."

Correct, you have NO "Constitutionally guaranteed rights", the Constitution ONLY restricts how the govt. may infringe on your rights. Everyone has all the rights the human mind can imagine and they all end at the tip of your nose, not the other guy's.

ATTENTION : THE SKY IS FALLING : ATTENTION

You have no Constitutionally guaranteed right to vote, that is correct, you have no Constitutionally guaranteed right to vote. The Constitution doesn't even mention voting, does it?

Have a nice weekend people.

[Dirk Rösler]

I don't need help (or, the help I need isn't going to come from a website) - I just wanted to raise an alarm & let everyone know of an issue.

Have you even looked at that website (www.photopermit.org; scroll all the way down to see what it is about)?

You need all the help you can get to make any significant impact whatsoever. If you don't think so, your chances of getting anywhere with this have already decreased substantially. At the moment you have a lawyer who is a non-subject matter expert and discussing this on a web forum consisting mainly of legal laymen. Good luck to you, your finances and your sanity.

[cyrus]

Well, it seems to be pretty well-established that it's not - at least to the extent that "photography" means the making of the photo. No right is being invaded or eroded, because the "right" touted by ASMP has never actually existed. That ASMP has overstated things in a way that would serve their interests is not especially surprising, is it?

That D'Amario opinion (one of several, since Mr. D'Amario has been quite litigious) is often cited as a leading authority on the subject. Since it was rendered, it's been repeatedly cited by other courts as well-reasoned, and not questioned even once in any published opinion or order. In parts of the opinion that come after what you quoted above, however, the judge did draw a distinction between a general First Amendment right to photograph and a right to photograph newsworthy events.
.

That's right. Now someone's getting it! D'amario and some other cases did give some value to a right to photograph newsworthy events but that was only a very narrow except to the general claim that photography itself is conduct which is not protected.

I shepardized the case too and have been doing some interesting reading. There is competing authority, which is binding in the 2nd Circuit.

The case involves the photographer Spencer Tunick. He sued the city of NY to allow him to take photos of a group of nudes in public. The court treated his "right to photograph" claim as a first amendment issue - and eventually upheld his claim. It was affirmed on appeal. There is a first Amendmnet right to photograph nudes in public in New York.

Needless to say, I'll be relying on this case primarily. There are also a couple of other persuasive cases from other circuits.

D'Amario thus far is only 1 case from the District of Rhode Island - not very authoritative. The other cases that cited it, did so only as dictum. D'Amario can be limited on its particular fact to a "right of access" issue. It has enough features to be distinguishable.

HOWEVER - lets all be clear: The right to take photographs even in public places is resting on a knife's edge right now. Do NOT take it for granted - it is very much in serious doubt. If more courts adopt the D'Amario rationale, the consequences will be horrifying.

[Jim Ewins]

THE CONSTITUTION IS IN TATTERS. It specifies what the government can do - all else is reserved to the states or individuals. The bill of rights only enumerated some of those activities prohibited to the government. We are no longer a republic, but subject to mob rule (democracy). Unions, farm groups and big companies elect those who legislate favoring them. The right to photograph???

[cyrus]

Have you even looked at that website (www.photopermit.org; scroll all the way down to see what it is about)?

You need all the help you can get to make any significant impact whatsoever. If you don't think so, your chances of getting anywhere with this have already decreased substantially. At the moment you have a lawyer who is a non-subject matter expert and discussing this on a web forum consisting mainly of legal laymen. Good luck to you, your finances and your sanity.

I have been following photopermit since its inception. Its very interesting reading but it doesn't help me in any way. I'm not here to ask for legal help from laypeople on a forum. Like I said I'm trying to bring something important to everyone's attention. This isn't about me personally

[cyrus]

Hi all,

I'm confused again, surprise.

Mr. D'Amario tried to gain access, with a camera, to a concert with a 'no cameras' clause in the contract.

The contract was acted upon by at least 1 interested party, the group playing, so it's binding.

The judge politely told Mr. D'Amario to whistle 'Dixie'.

Where's the problem?

The problem is that accordng to the D'Amario decision the photographer not only didn't have a right to access the venue, he didn't have a right to take photos there or anywhere else.

[Brian Ellis]

"D'Amario thus far is only 1 case from the District of Rhode Island - not very authoritative. The other cases that cited it, did so only as dictum. D'Amario can be limited on its particular fact to a "right of access" issue. It has enough features to be distinguishable."

Of course it isn't very authoritative and of course it can be distinguished on its facts, that's obvious to anyone who reads the case. But that being true as you now acknowledge that it is, what's all the fuss been about? Why all the statements such as "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" or "So if the Parks Service decides that no photography will be permitted in Yosemite, you can't say that your right to take photos there has been violated" or all the stuff about how NYC can prohibit people from using their point and shoot cameras to take photographs of their shoes on the city sidewalks because of this case?

I really don't get it - first you tell us there is this case that nobody can find because Lexis has the headnote wrong and you won't give us the name of the case but it establishes some bad constitutional principle relating to freedom of speech. Then you relent and tell us the name of the case and the constitutional principle that you think it establishes and what that principle will mean to photographers. Then you continue to post message after message telling us about all the things the case will allow governments to do and how nobody can complain about them because of this case. And then after all of that you conclude by telling us that the case really isn't very authoritative after all (which of course it isn't). Thud.