When Public Photography Is Not Protected By The First Amendment

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__](http://photographyisnotacrime.com/wp-content/uploads/2012/01/photography-the-first-amendment) 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__*](mailto:carlosmiller@magiccitymedia.com)

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__](http://photographyisnotacrime.com/wp-content/uploads/2012/01/photography-the-first-amendment) 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__*](mailto:carlosmiller@magiccitymedia.com)

Support our Mission

Help us build a database of bad cops

For almost 15 years, PINAC News has remained active despite continuous efforts by the government and Big Tech to shut us down by either arresting us for lawful activity or by restricting access to our readers under the pretense that we write about “social issues.”

Since we are forbidden from discussing social issues on social media, we have created forums on our site to allow us to fulfill our mission with as little restriction as possible. We welcome our readers to join our forums and support our mission by either donating, volunteering or both.

Our plan is to build a national database of bad cops obtained from public records maintained by local prosecutors. The goal is to teach our readers how to obtain these lists to ensure we cover every city, county and state in the country.

After all, the government has made it clear it will not police the police so the role falls upon us.

It will be our most ambitious project yet but it can only be done with your help.

But if we succeed, we will be able to keep innocent people out of prison.

Please make a donation below or click on side tab to learn more about our mission.

Subscribe to PINAC

Bypass Big Tech censorship.

Carlos Miller
Carlos Millerhttps://pinacnews.com
Editor-in-Chief Carlos Miller spent a decade covering the cop beat for various newspapers in the Southwest before returning to his hometown Miami and launching Photography is Not a Crime aka PINAC News in 2007. He also published a book, The Citizen Journalist's Photography Handbook, which is available on Amazon.

Leave a Reply

- Advertisement -

Latest articles