Good thing I'm photogenic...

A couple of days ago, I stumbled upon a website run by one Carlos Miller. Mr. Miller runs a website specializing in photography and the first amendment. Here's the blurb on his homepage about his background and history on this topic:

"My name is Carlos Miller and I am a multimedia journalist who was arrested by Miami police after taking photos of them against their wishes, a clear violation of my First Amendment rights. Since that arrest on Feb. 20th, 2007, I've been fighting a lengthy battle against the State of Florida to prove my innocence."

However, more interesting than his case are the dozens of cases he blogs about concerning photography and the first amendment. One that caught my attention was "NYPD Officer Orders Photographer to Hand Over His Film."

Basically, a photographer was taking pictures of the rides at Coney Island, when "an irate mother complained to police that he had photographed her child." So, "a New York City police officer ordered Lund to either destroy his film or hand it over to the child’s mother." He claims "he was photographing the rides, something he does on a regular basis, and was not aware if he had photographed the woman’s child." Pressured and bullied by the officer, he gave the film over to the woman. Now, he plans on filing a complaint with the Civilian Complaint Review Board, and the New York Civil Liberties Union is looking into the matter.

It is clear that there is a war here between privacy, and a public's right to knowledge, or in this case, artistic expression. One most decide if the woman's right to protect her child from prying eyes (or camera lenses), even in a public place, is greater than the photographer's right to photograph what he wishes.

First, it should be known that, "The general rule in the United States is that anyone may take photographs of whatever they want when they are in a public place or places where they have permission to take photographs. Absent a specific legal prohibition such as a statute or ordinance, you are legally entitled to take photographs. Examples of places that are traditionally considered public are streets, sidewalks, and public parks." That is according to lawyer Bert P Krages II, who specializes in photography in the law, and his pamphlet "The Photographer's Right." So it is clear that the photographer was not against the law, as Coney Island is a public place.

However, there is a strong argument in favor of the woman and her child. While I am not a mother myself quite yet, I can't imagine what it would be like to have someone come up, unannounced, and begin to take my child's photograph. You would have no idea what the photograph will be used for. It could be for commercial reasons, or even for something more foul,
such as child pornography, and both of those are highly illegal. (A commercial photgraph would require consent). The photographer could be a convicted sex offender for all anyone could know. And as the child is too young to stand up for himself, the mother has every right as his guardian to protect him.

However, this is a public place. I believe that the mother assumed risk in coming out into a public place. Especially a place like Coney Island, where picture taking is quite common. If the mother wanted privacy, she could have stayed in her home. As the Photographer's Guide to Privacy states, "If the subject of the photograph has no reasonable expectation of privacy, then no invasion of privacy is possible. Photographs taken in public places generally are not actionable." This is a clear defense against invasion of privacy and the privacy torts. (It should be noted that public places such as toilets, dressing rooms, etc. are exempt from the public realm - however this has no applicability to this case)

In the case Nussenzweig v diCorcia, the New York Supreme Court clearly states "This Court has observed that New York's privacy statute 'was mainly designed to operate in connection with the sale of goods and services,' and that its application to works involving literary and artistic expression protected by the First Amendment 'was remote from the Legislature's contemplation.'" Basically, unless the photograph is slapped on a mug or tshirt and sold in bulk, then taking photographs in public without consent is legal. Although we can't be sure that the photographer in this case wouldn't have ended up using it commercially, he had not at the time of the confrontation, so we must give him the benefit of the doubt and not merely assume he would have committed a crime.

Also in this same case is an affadavit from one Peter Galassi, Chief Curator of Photography of The Museum of Modern Art. He goes on to talk about how important street photography is in the artistic world. Here are some excerpts from the case:

"[Peter Galassi] describes street photography as 'one of photography's most important creative traditions.' As to seeking permission to photograph a subject and to exhibit, publish and sell images captured by the photographer, he states, 'It would be highly impractical--indeed, in the overwhelming majority of cases simply impossible--for the photographer to obtain such permission.'"

"Galassi asserts that had the genre been burdened by the kind of restrictions now sought to be imposed by plaintiff, the public would have been deprived 'of one of the most valuable traditions of our cultural inheritance, including many of the most admired works of artistic photography of the past century.'"

As we can clearly see, there are strong reasons against stifling one's artisitc expression and first amendment rights. The public has a right to view new and exciting works of art that help expand upon our cultural heritage. And, in order for artisitic expression to bloom, the public must be willing to risk a bit of their privacy. That is the price we must pay.

And if you're curious, here's the link to view some of his photos from the day. I also encourage you to browse Mr. Miller's website. Some of the cases are quite ridiculous! I learned that the NYPD has a strong history of imposing upon photographers' first amendment rights. Even more interesting the outcome of Mr. Miller's case. Apparently, his judge was upset that he blogged about his case and imposed more probation than the prosecutors were even asking for in retaliation...