October 11, 2009
Photography Department
Photography Is Not a Crime
A friend of mine sent me a link to a New York Times piece by Randy Kennedy about photographer Mitch Epstein. He's doing a series of photographs about America's energy policies, photographing things like gas stations and power plants. As you might expect these days, he gets stopped by police a lot.
I agree with my friend's assesment:
I remember stories about such things in the Soviet Union or Yugoslavia, thinking how lucky I was to live in America...
I too remember being told about how in Russia the police would stop you if you tried to take pictures of certain buildings. I was glad we didn't have that here.
As we say, 9/11 changed everything. Suddenly, police got jumpy if they saw someone taking pictures of things like transportation infrastructure and power plants. And they weren't real happy about having their own pictures taken either.
In one sense, the First Amendment is holding up despite the onslaught. The courts have remained pretty clear on this. Taking photographs in public places is not a crime, and I haven't heard of anybody getting convicted for it.
On the other hand, just because there's no law against taking pictures of whatever you want doesn't mean you are completely free to take pictures of whatever you want. Police can still ask you what you're doing, ask for ID, and ask to see the pictures. Except maybe for the ID, you don't have to answer them, and you sure don't have to let them see your pictures. Most cops are actually well-trained in the freedoms of the press, and if you can manage a professional tone, they'll give you back a little respect.
But if they get pissed at you for some reason, they can do a lot of things to harass you, starting with detaining you and taking your (possibly very expensive) camera. They're not supposed to take your camera without a court order, and your lawyer can get their lawyer to make them give it back, but if there are no pictures in memory, or the camera is damaged, they can say it was that way when they got it.
Actually, the cops are allowed to seize your camera without a court order if they're in the process of arresting you, and a few photographers have found themselves arrested for some catch-all crime like disorderly conduct or interfering with police business. These charges usually don't stick, but they'll mess with your life and discourage you from taking those kinds of pictures again. Which is the point, and the problem.
Carlos Miller has a whole website about these kinds of incidents at Photography is Not a Crime.
2 Comments
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"Except maybe for the ID.."
No way Jose! See Brown v. Texas, Kolender v. Lawson and Hiibel v. Sixth Judicial Circuit.
Yes way! I'm a bit rushed for time, but I think the case law says a police officer can require you to identify yourself only if he has reasonable suspicion that you're up to something (admittedly a very low hurdle) and if there's a state law granting him that power. I think about half the states don't have stop-and-identify laws, so "except maybe" means it depends which state you're in.