Nicholas Shelton, Mrs. Griswell, LNG 341, 24 November 2008
A Picture is Worth a Thousand Constitutionally Protected Words
Protestors have been beaten, activists have been jailed, and soldiers have been killed attempting to gain, exercise, or protect the rights outlined in the Constitution of the United States of America. When the Constitution was written and signed by the country’s founders, the document was great but not perfect. In 1789, Congress passed the Bill of Rights, a group of ten amendments to the Constitution, which clarified certain rights of citizens not specifically identified in the Constitution. Included in the First Amendment are the right to free speech and the right to a free press. The fact that photography can be both a form of speech and a form of press is often overlooked by law enforcement and others concerning the right to photograph federal buildings, bridges, or factories. People often interpret the First Amendment based on their own desires instead of attempting to understand the intentions of the founding fathers.
Whether used in the press or as artistic expression, photography is a right that is granted under the First Amendment of the Constitution to all citizens. The First Amendment states,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Klinkner 9)
Whether or not photographers are included in the First Amendment protections of speech or the press remains an important and fiercely debated question within modern American society. In order to understand how the First Amendment applies to photographers, one must first understand the many ways in which photography has become a part of everyday American life. Of course, families of all income levels, religious backgrounds, and political philosophies use photography to mark special occasions or to remember loved ones, and those photographs are usually displayed prominently in the home or protected in cherished albums. Artists use photography as an expressive medium, while the print media uses relevant photographs to enhance the reader’s understanding of the subject matter. Even television, usually dominated by moving images, uses powerful still photographs to stir emotions or to punctuate a news story. Photography seems to continue to insert itself in new ways into American life with easily editable photographs appearing on the internet for the world to see only moments after being taken.
Photography displays artistic expression in two different forms. Personal photography is a popular form of artistic expression because it can include anything from family portraits to beautiful photographs of such family destinations as the Grand Canyon. Commercial photography is the other form of artistic expression that can be sold or used for one’s personal photography collection. Whether or not artistic expression is protected by the First Amendment has been a long standing debate that will not be resolved any time soon. Some believe that artistic expression is a form of free speech; therefore, it must be protected by the First Amendment, whereas others like Larry Alexander who wrote Is There a Right of Freedom of Expression? tend to stand on the opposite side of the argument.
Naturally, as more people have constant access to cameras and an instant ability to share images widely with mass audiences, both professional and amateur photographers increasingly find themselves at the center of controversy. Whether a professional photographer captures images of the coffins of deceased American soldiers or an amateur photographer uses his cell phone to capture images of police brutality, photography often incites embarrassed subjects to attempt to prevent the pictures from being taken or being published. Often, the photographer is unaware the he is about to become embroiled in a battle for his First Amendment rights when he pulls out his camera or cell phone to record an interesting scene unfolding before him. In fact, many photographers give up their rights without a fight, but a growing population of photographers refuses to succumb to threats and intimidation.
Many times when law enforcement attempts to suppress photography and a photographer refuses to comply, courts decide who is right. One example of a First Amendment dispute resulting in a court battle occurred when a photographer named Mike Anzaldi was arrested for photographing a crime scene. An off-duty police officer had shot and killed a man who was trying to rob him, and Anzaldi was the first news photographer to arrive at the scene. As the police began to cordon off the crime scene with caution tape, Anzaldi received the owner’s permission to enter private property to photograph the crime scene. While taking pictures, an officer told Anzaldi that the law prohibited him from photographing a crime scene that was still under investigation. Anzaldi felt sure that the officer was incorrect because the First Amendment bars such laws to be passed. The police arrested him for disrupting a police officer when he refused to stop photographing the scene. The police deleted 500 images from both of his cameras and also confiscated his video camera. Anzaldi was released from jail nine hours later and has filed a lawsuit against the Chicago Police Department. (Miller, “Chicago”)
Another example of an apparently blatant violation of free speech rights occurred when an artist from Japan was in Coral Gables, Florida, taking many different photographs when she noticed a police officer was sitting on his motorcycle having a personal cell phone conversation while he was on duty. The woman snapped a picture of him, and the officer became outraged. He took her camera and deleted all of her photographs and slammed the memory card on the ground. The woman filed a complaint with the police department, and they informed her that they would give the officer a written reprimand that would stay on file for one year. A Coral Gables resident and amateur photographer had this to say regarding this violation of the First Amendment, “To have the digital, intellectual property of this complainant destroyed, and possibly the physical asset damaged by the actions of a representative of our police department is unlawful, and completely outside the bounds of appropriate behavior” (Miller, “Picture”).
Apparently blatant violations of the First Amendment are not the only controversial cases being decided by courts. Controversies also arise concerning whether or not photographers should be allowed in a courtroom during a proceeding. A specific court case involving this was Estes v. Texas. The defendant moved to exclude cameras from the courtroom because he knew that it would draw national media attention and did not want to be embarrassed. The United States Supreme Court ruled in a five to four decision that cameras must be excluded because they would disrupt the proceedings (Lee, “Cameras”). This particular ruling is considered controversial, however, because in the 1981, case Chandler v. Florida, the court ruled in an eight to zero decision to allow all radio, video, and photographic coverage of the case regardless of the defendant’s wishes (Lee, “Cameras”).
There have also been incidents of free speech violations involving commercial photographers. A man named Don Broome went to Mooresville, Alabama, to take photographs of historic buildings. Broome was served with a notice informing him that he had to leave town immediately because he did not pay a mandatory $530 fee imposed by the city to allow commercial photographers to take pictures of the town’s historic buildings. Broome felt that he did not have to pay the fee because the law requiring him to do so directly contradicts the First Amendment (“Alabama”).
Another controversy regarding artistic expression is whether or not the First Amendment provides protection for obscenity. Robert Mapplethorpe was a photographer who entered many of his photographs into competition. He came under legal fire when he entered pictures which graphically depicted homosexuality. Senator Jesse Helms from North Carolina, as well as other conservatives, criticized Mapplethorpe and his photographs. As a result of the pressure applied by Helms, many of the Mapplethorpe photographs were taken out of shows (Klinkner 148).
While governments or government officials can often be found at the root of First Amendment cases involving photography, groups with a commercial interest can also attempt to prevent photographers from practicing their craft. In 2004, Mattel tried to prevent Tom Forsythe from displaying a photographic series entitled Food Chain Barbie. Even though Tom Forsythe risked bankruptcy to win the battle, he reasoned, “Given that other activists lay down their lives for their principles, simple bankruptcy seemed a minor risk” (McLeod 329-30).
Repeatedly, courts in the United States have affirmed that photography is a right which is included in the protection of the First Amendment to the Constitution. Artistic expression, professional media, and even amateur picture-takers have all defended their rights to create, publish, and disseminate photographs. Although those offended or embarrassed by photography probably will not cease to attempt to suppress the rights of photographers, photographers do not appear to be willing to give up their rights without a fight. Even if photographs are deemed to be unwanted or distasteful, courts do not appear ready to curb the right of free expression. Perhaps, Justice William O. Douglas explained it best in 1949, when he stated succinctly, “A function of free speech under our system of government is to invite dispute” (Klinkner 77).
Works Cited
“Alabama Town‘s Photography Permit Draws Fire.” Editor and Publisher. 24 Mar. 2008. Associated Press. 4 Nov. 2008
<http://www.editorandpublisher.com/eandp/news/
article_display.jsp?vnu_content_id=1003729465>.
Klinkner, Philip A. The American Heritage History of the Bill of Rights: The First Amendment. New Jersey: Gallin House Press, Inc., 1991.
Lee, Douglas. “Cameras In the Courtroom.” First Amendment Center. 19 May 2008. 30 Sep. 2008 <http://www.firstamendmentcenter.org//press/
topic.aspx?topic=cameras_courtroom&SearchString=photography>.
McLeod, Kembrew. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. New York: Doubleday, 2005.
Miller, Carlos. “Chicago police arrest photog, delete images and refuse to return camera.” Photography is Not a Crime. 2008. 4 Nov. 2008 <http://carlosmiller.com/2008/10/24/
chicago-police-arrest-photog-delete-images-and-refuse-to-return-camera/
#more-1970>.
Miller, Carlos. “The picture that drove a Coral Gables police officer over the edge.” Photography is Not a Crime. 2008. 4 Nov. 2008 < http://carlosmiller.com/2008/06/26/
the-picture-that-drove-a-coral-gables-police-officer-over-the-edge/>.
Each year high school seniors ask me to mentor them in photography. I always enjoy mentoring and working with these young adults. Last year, I had the pleasure of mentoring Ashley Mauer. This year I am mentoring Nicholas Shelton and Katie Fox. Another one of my senior girls (one of my favorite customers), Jasmine Hughes also interviewed me for her senior paper. When it comes to photography, there is so much to talk about and teach, and yes let them know the reality of it all, that photography is hard work. Everyone always thinks it is easy and fun. The truth of the matter is if you want to be successful in photography you have to work hard, be smart and treat people fairly. Nick asked me early on, what he should write his paper on. I related my experiences of being called into the FBI office last year for doing night photography in Augusta and being questioned about it. This all led to his topic the constitutionality of photographing. I hope if you have an interest in photography you will take the time to read his senior project. It is very well written, thought out and articulate. I am proud of the work Nick did. He got a 95 on his paper, way to go Nick!!!
What is right when photographing? What is wrong? More so than any time in our nations history photography is changing. Before digital scanners-no one ever replicated a photographers images. Nowadays, even the general population does not understand copyright or why a photographer needs to protect their work. Photography is evolving….and we are all going to keep up with it, or be left holding film canisters in our hands. If you have any thoughts on this I invite you to blog, I know Nick will enjoy seeing your comments. ~Sally
