Yup... we are about $1000 less wealthy even though the judge said thought the law was stupid and the cop was being a dick because there didn't appear to be any imminent danger resulting from the "illegal lane change". The judge also said that he was hearing his last cases prior to retirement and was "in a good mood". Oh... and in addition to fine and court fees... there was the mandatory traffic school to keep the points associated with the violation off of the record. Traffic court certaily does seem like a whole other matter!
Larsen v Ft Wayne PD...in which the plaintiff's claim to First Amendment right to take photos of a high school event was rejected because of Porat - the court actually referrd to and had cited Porat directly:
"It is well established that in order to be protected under the First Amendment, images must communicate some idea." Porat v. Lincoln Towers Cmty. Ass'n, No. 04 Civ. 3199(LAP), 2005 WL 646093, at *4 (S.D.N.Y. Mar. 21, 2005). More specifically, to achieve protection under the First Amendment, a plaintiff must show that he possessed (1) a message to be communicated, and (2) an audience to receive this message, regardless of the medium in which the message is to be expressed. Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 568 (1995); Porat, 2005 WL 646093, at *4. Therefore, the taking of photographs or videography, without more, is not protected by the First Amendment.
No, don't explain some more. It isn't helping.
When the charge is causing a disturbance, the question is whether the accused did so. At the trial, the witnesses, including any police officers, are expected to testify about the facts, and the judge decides whether those facts prove the offense. Unless there is something like the legality of a police search in issue, none of this has anything to do with reviewing police conduct.
I am not an American lawyer, but it is complete news to me that on a charge of causing a disturbance, a U.S. judge is under a legal requirement to put the evidence of a police officer on a plane higher than that of other witnesses. That is certainly not how it works in Canada, the U.K. or any other part of the Commonwealth.
If it is how things work in the U.S., it strikes me as a really odd to jump to the conclusion that it should be "fixed" by making something a constitutionally entrenched right.
Cyrus, you started by presenting an interesting issue that should have been discussed on its merits, i.e. whether there should be a distinction, for first amendment purposes, between photographers who are making work for an audience, and those who are interested only in personal enjoyment. But in defending your view on this question, you have largely through your own posts taken this discussion way off track and made overstatement after overstatement, which doesn't help your argument.
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Well there are lawyers with credentials who are morons, and there are people without credentials who are brilliant so its not really about credentials. In any case I've done my best to provide links and citations for others to verify anything I'm saying independently. They don't have to believe me and I don't particulary care if they do or not -- I'm not selling anything.
Brian and Cyrus,
I know that walking up the steps of a court of justice is a 50-50 gamble. The initial judgement can be quote and used until it's overturned. The scales of justice are often only tested fully after strenuously argued appeals.
If someone with balls and money appealed up to higher courts, they'd get new judgement. The Porat decision, while quoted, is hardly the last word. Essentially, without collecting information that might lead to formation of speech, there can be no free speech! Today, photography is universally recognized as part of repeatedly sampling one's surrounding for remembering, entertainment and communicating what was seen to others. There is, today no longer a clear absolute separation between recreation and news coverage. What is taken for "fun" can end up on You-Tube as a viral piece of communicated speech. Essentially, the Porat decision if upheld by the Supreme Court ,would make judges free to decide what of such speech is protected. The whole idea of "Free Speech, is that it includes freedom to observe and record, think, reflect perhaps and then impulsively or thoughtfully express some though, idea, concept or image. It could be as simple as "The Are Flowers in San Francisco". That a judge feels that is not some idea of value is hardly relevant.
Without a highly skilled law firm with the full resources to take this case all the way to the Supreme court, the Porat case should be considered a mistake that can be corrected if we are determined.
Asher
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