Photography, the Law, and Free Speech

Discussion 4: Photography, the Law, and Free Speech

The goal of this assignment is to better understand our rights, risks and responsibilities as photographers.


Is photography free speech? There has been no specific Supreme Court ruling on whether photography is protected under the First Amendment of the U.S. Constitution. This discussion assignment will allow you to conduct some research on the topic of photography and free speech and develop your own position on the issue.

You may be surprised to learn that some court rulings have not affirmed your right to photograph even in public places. In the 2005 case of Porat vs. Lincoln Tower Community Association a court ruled, “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.” Therefore, if you are photographing for pleasure as a hobbyist for personal use only the law may not protect you in the same way as if you were a journalist or an artist who may intend to publish or display your work.

Porat vs. Lincoln Tower Community Association

In other situations working press photographers and police sometimes butt heads over the rights of the press and the need or desire for security. In March of 2012, NBC published an account of police leading an NBC new photographer away in handcuffs while yelling, “Your first amendment rights can be terminated.” According to the report, photographer was working in a public place.

In some cases student photographers, including Daily Collegian photographers, have been arrested and charged for photographing in situations where law enforcement officials have believed the students do not have the right to photograph. Several of those cases listed at the end of this assignment description are newspaper accounts of photographers who have been detained or arrested for taking pictures in various situations. In one case, a Penn State Daily Collegian student newspaper photographer was arrested while photographing a riot on Beaver Avenue in State College. In another case, an Ohio State student was arrested while simply photographing cows that had gotten loose from a pasture.

An additional example details a recent account of a Spokane Washington Sheriff department official communiqué (later retracted) that describes photography as a suspicious activity and the National Press Photographers Association’s subsequent objection to the notion.

These examples are included to give you an understanding that photographers and law enforcement officials are not always in agreement about what is legally protected speech and what is not.

Groups like the ACLU and the First Amendment Center at Vanderbilt University have published extensive information online about the relationship between photographers and law, which may help you to start your research.

Write a Position Statement

For this discussion post a Position Statement that addresses any of the below questions.

Should student photojournalists be treated differently than their professional photographer counterparts by law enforcement?

Do you agree or disagree with the American Civil Liberties Union that you have a right to photograph a cop performing his or her duties?

Do you agree or disagree with the court decision in the Porat vs Lincoln Tower case that the photographer needed to intend to communicate a message to an audience for their photographs to be protected speech? Does Youtube constitute a credible venue for communicating to an audience in this case?

Do you believe photography of public places is an inherently suspicious act that police should investigate when observed?

When, if ever, does the need for security outweigh the rights to photograph in public places?

Many Photo 100 students are citizens of countries other than the United States. Do you think the laws or policies of your native country regarding photography are more or less restrictive that those of the U.S? – Please cite examples.

Feel free to address other pertinent issues on these basic topics beyond the specific question listed above.

Write the Response Comments

Browse your Peers’ Position Statements and write well-reasoned responses to at least ten (10) different statements.

The Discussion Assignment Guidelines (read this carefully)

Very Important: Include numbered in-text citations for references included at the end of your statement. Your position must be supported with at least three well-researched references.

In PHOTO 100 our discussions occur in two parts:

1. The Position Statement

Our Position Statements are short (500 words or more) research-based papers where you take an informed stand or position on a topic and then argue your position using your research as support. A key element is the concept of taking an “informed position.” That means that you should be able to back up your position with evidence based on research from credible sources. In other words, you need to know what you are talking about and be able to prove it.

A Position Statement is an opinion, however unlike the opinions posted to most blog sites, your work in PHOTO 100 must be critical and scholarly. Base your Position Statement supporting arguments on facts and evidence. Include at least three (3) footnoted authoritative references to validate your position. Use primary source quotations, statistical data, etc. to help build your case.

The basic Position Statement structure is as follows:


Identify the issue and state your position on it.

Background information
What does the reader need to know?
Supporting facts
Evidence should logically lead to the position presented in the introduction.
Discuss various sides the issue.

Summarize the main concepts and ideas without repeating yourself.
Suggest solutions to potential problems you address in your position (i.e. courses of action)
Grammar and spelling should both be at college level. Your instructor will reject late or incomplete assignments.

2. Response Comments to the Position Statements

Response Comments are short (50 words or more) critical reactions to your classmates’ Position Statements. The best responses usually contain three sentences that loosely follow the introduction, body and conclusion format. These statements form the basis of the “discussion” portion of the class. Leave at least 10 responses and on at least two different days. This ensures that you give yourselves the opportunities to respond to one another. These are not text message statements; write statements with correct spelling, punctuation and grammar. Provide thoughtful feedback and responses. Remember to look at your own Position Statement, see how people are reacting, and respond to them. Do not be afraid to disagree or take an unpopular stand. Do not argue with or “flame” your classmates. Keep the discourse scholarly and professional.

Self-Assessment task: Before you upload your statement, assess your own work by answering these questions for yourself:*

Analytical reasoning:

Do you present a very clearly stated insightful position?
Do you provide at least three (3) sound reasons to justify it based on your research?
Do you provide an analysis that reflects the complexity of the issue?
Do you look at the idea from various sides? Consider ethical, cultural, social and even political aspects of photography.
Writing effectiveness:

Do you provide valid and comprehensive elaboration on the reasons for your position?
Did you organize the position in a logical manner that is easy to follow (see the structure above)?
Writing mechanics:

Is your grammar and spelling should both be at college level?
Do you use vocabulary that is precise and varied?
Assignment Checklist

Minimum position statement length: 500 words not including references.
References: At least three (3) CREDIBLE references from respected sources numbered in the body of the text with a simple corresponding footnote list at the end.
Your position: Clearly stated and well defended
Response length: 50 word minimum
Response timing: Posted on at least two (2) different days
Grammar and spelling: Proofread and at a college level
Completed the self assessment tasks listed above before uploading.
On time: Be clear on the due dates, submit early to avoid problems.
These are minimum expectations: Work falling below minimums will be disallowed.
Case Study Examples…

Example 1:

Monday, April 26, 2010

Ohio State University Lantern student newspaper photographer cuffed, detained

When two cows got loose last Wednesday, Lantern photographer Alex Kotran hustled to his room in Lincoln Tower. He had heard about the commotion, grabbed his professional camera gear and ran to the athletic fields next to Lincoln Tower.

Within two hours, Ohio State Police had caught the cows – and Kotran. He was detained, handcuffed and is facing a misdemeanor charge of criminal trespass.

Example 2:

Nov 2, 2011

Journal Sentinel photographer arrested while covering Occupy Milwaukee protest.

A Journal Sentinel photojournalist and two University of Wisconsin-Milwaukee students were arrested near campus Wednesday during a rally connected to the Occupy Wall Street movement.

Photographer Kristyna Wentz-Graff was covering the rally, which began at noon in a plaza beside UWM’s student center. The group left campus on E. Kenwood Blvd., marching westbound in the street and on the sidewalk, chanting and carrying signs.

Example 3:

July 19, 2004 By Gina Kim, Chicago Tribune

Cops seize college photographer’s film:

A Columbia College journalism student, working on a photography project Sunday at Millennium Park, was stopped by Metra police and his film confiscated because of fears of terrorism.

Soren Schulein, 30, of Edgewater was shooting photos of the newly opened park and specifically studying the space as a place for people to gather, he said. At about 1:30 p.m., at the northwest corner of the park, he noticed four Metra police officers chatting and began taking photographs of them.

Two of the police officers stopped the student, questioning his intentions. When he couldn’t provide them with his student-identification card, they took him to an office in the Metra station at Michigan Avenue and Randolph Street.

Example 4:

State College PA, November 7, 2008

Student photographer faces misdemeanor charges after riot

A photographer for a Pennsylvania State University newspaper has been charged with two misdemeanors while covering a riot, The Daily Collegian reported.

The riot in downtown State College began on Oct. 25 after a Penn State football victory, and quickly spawned destructive and illegal behavior, according to State College police. Michael Felletter, a student photographer for The Collegian, said he received a call from his editor-in-chief to cover the riot.

“While I was there, I did my best to record the ensuing riot with my camera,” Felletter wrote in an e-mail. “I never obstructed the police in any way, nor did I make any act to escalate the situation further.”

Example 5:

Nation Press Photographers Association website…

Photography: It’s Still Not Illegal UPDATE 05/18/2011 11:48 a.m. EDT: On Wednesday, May 18, the Spokane County Sheriff’s Department deleted “photography” as one of the suspected criminal activities on their online tipster form.

DURHAM, NC (May 16, 2011) – The National Press Photographers Association’s general counsel today sent a letter of objection to the Spokane County (WA) Sheriff’s Department regarding their online crime tip form used by citizens to report “suspicious activities.”

NPPA objects to “photography” being offered as one of the check boxes on the form as an example of a suspicious incident or event. “Photography” is included alongside such real crimes as “theft,” “cyber attack,” “physical intrusion,” and “overt-expressed threat.”

The “Report It Form” says it is intended for use by citizens “to collect tips about any suspicious activity within the region.” While the form also has a disclaimer saying that some of these activities “are generally First Amendment-protected” it also suggests that citizens file a report if they suspect the behavior they’re witnessing “is not innocent” or is “indicative of criminal activity associated with terrorism or other crimes.”

NPPA’s lawyer wrote to the Sheriff that “We are concerned that photography has been suggested at all.”

“Unfortunately the reliance by law enforcement officers to question, detain, and interfere with lawful activities by photographers under the guise of preventing terrorist activities has become a daily occurrence,” Mickey H. Osterreicher wrote on behalf of NPPA. “The abridgement of a Constitutionally protected activity because of that erroneous belief is only reinforced by your specific reference to photography as possibly being part of some sinister act.”

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