26 September 2014
So. You think you understand the Free Speech Clause of the First Amendment, as it relates to photography.
Case law establishes this clause only applies to photography produced for public consumption – political, educational, etc.
Photography produced for one’s personal use is not considered ‘protected speech’.
“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)
“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)
How to apply this new knowledge? Easy. Your words, your responses to law enforcement officers who order you to cease your photography.
If they ask, “Why are you taking these pictures?” AND you answer, “It’s for my own personal use.” They may confiscate your camera, and/or arrest you and only the Lord knows what other undesirable punitive measures, like being charged with criminal trespass.
If or when you are asked the above question. reply, “I am writing a blog about this topic.” or some other reason that would clearly communicate your photography is for the purpose of COMMUNICATING with other people.