When Public Photography Is Not Protected By The First Amendment

Carlos Miller

I’ve been proclaiming for years that photography is protected by the First Amendment, even before launching this blog.

It is that belief that led to my arrest in the first place, which in turn, led to this blog.

But as it turns out, it is not so cut-and-dry.

Earlier this month, the First Amendment Center published an in-depth, comprehensive analysis of court decisions regarding First Amendment protection of street photography.

And there have been cases where a judge has ruled against a photographer, even though he was taking pictures in public when arrested.

The issue has never made it to the Supreme Court, so there still hasn’t been a final verdict on the issue.

But according to the court cases listed in the article, simply taking photos in public is not necessarily protected under the First Amendment.

One must be taking photos with a “communicative or expressive purpose” for it to be considered protected speech.

In other words, if you are taking photos for your family album or to post on your walls at home, you have no First Amendment protections.

“The First Amendment literally forbids the abridgment only of ‘speech,’ but we have long recognized that its protection does not end at the spoken or written word … we have acknowledged that conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.’
“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.

Fortunately, the internet allows each and every one of us to communicate our message to the masses, even if we are just posting photos on Flickr or Facebook.

It’s good to keep this in mind next time you are harassed for taking photos.

Please send stories, tips and videos to carlosmiller@magiccitymedia.com


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