More privacy restrictions or fair decision?

Started 8 months ago | Discussions thread
mgd43
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Re: The US first amendment is not absolute
In reply to mgd43, 8 months ago

mgd43 wrote:

mike703 wrote:

darklamp wrote:

The US first amendment is not an absolute right to do what you want regardless of what damage it causes.

...

Limits are a necessity in a mature society.

Well said. Actually there are more limitations to the first amendment than many people realise. The first amendment is often cited as a blanket excuse to justify behaviour by photographers that is felt to be objectionable by other people. (Hey, I can walk on the beach taking pictures of the girls in bikinis with my 400mm lens, the first amendment says so…).

This site is interesting:

http://www.firstamendmentcenter.org/photography-the-first-amendment

Various USA supreme court rulings have made it clear that taking photos in public is not automatically 'free speech': there must me some message that is being communicated by the photos, and some audience to receive the message, before photography counts as 'speech'. From the above site:

"In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Texas v. Johnson (1989)

Six years later, the Supreme Court reiterated, “To achieve First Amendment protection, a plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed.” Hurley v. Irish-American Gay, Lesbian & Bisexual Group (1995)

So speech or conduct (taking photographs) that satisfies both of the elements above is allowed and protected in the “public forum.” Using this guide, we can look to the courts and find one type of photography that is not protected by the First Amendment: private recreational photography that is for one’s own personal use."

The last sentence is the key one (the emphasis is mine). Anyone doing street shooting for their own amusement in the USA does so at their own risk: if a member of the public objects to (for example) someone taking pictures of them or their kids and complains of harassment - whether that is true or not - the photographer is not protected by the first amendment unless they can prove what their 'message' is and to whom it is being communicated. Simply looking at the images on one's own PC later isn't enough to trigger 'free speech' protection.

Best wishes

I have never heard of a case in the US where a photographer was prosecuted for a photograph simply because the photograph did not communicate a message or have an audience for that message. I've been on photo forums since 2001 and I think that if that happened someone would have mentioned it. We've discussed photographers being detained for security reasons and for photographing children many times, but that has never been mentioned. That leads me to believe that either the courts interpret that section of the law differently than you do or that there has been more recent decisions.

There are limits to free speech. There are liable and slander laws. There are laws concerning truth in advertising. One cannot yell, "Fire!" in a movie theater. But photographers are allowed to photograph people in public places as long as the photo is not used for promotional purposes. If you can cite instances where a photographer was prosecuted because a photograph did not have a message or an audience for the message, I'd like to hear about it.

There have also been several articles in photo magazines about photography and the law and they all say that photography in a public place is legal for editorial purposes. Permission is only needed for promotional purposes.

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