What rights does a photographer have to take a photo and what limits may law enforcement or the courts impose on those rights? Â The courts in California have not clearly defined these rights. Â However, some guidance can be obtained from how parties have litigated these claims. Â Consider the following three scenarios:
- An artist stands on his property and takes a photograph through your uncovered window of your family for use in an art exhibition;
- A photojournalist snaps photos at a subway station arousing the suspicions of law enforcement; and
- A civil rights group wants to record video and audio of police officers making arrests in public.
These situations involve the intersection of privacy rights, First Amendment rights and, sometimes, national security concerns. Â Generally, the law favors a photographerâ€™s First Amendment rights over a personâ€™s right to privacy.
Foster v. Svenson, New York Supreme Court
Tribeca artist Arne Svenson surreptitiously took photographs of his neighbors using a telephoto lens to see into his neighborsâ€™ homes. Â The photographed subjects included children.
Svenson used the photos for an art exhibit calledÂ The Neighbors. Â Martha and Matthew Foster, parents of the photographed childrenÂ filed a lawsuit. Â In August 2013, a Judge Eileen A. RoakowerÂ dismissedÂ Â the lawsuit against Svenson holding that the First Amendment trumped any privacy rights. Â In dismissing the case, the court relied on the holding inÂ Hoepker v. KrugerÂ (2002) 200 F.Supp.2d 340. Â The Fosters have since appealed the dismissal. Â There is no reason to believe a California court would rule different. Â The lesson to be learned here is that curtains, not lawsuits, are the only remedy for parents in this type of situation.
Nee v. County of Los Angeles, United States District Court, Central California
On October 27, 2011, the ACLU filedÂ a lawsuitÂ Â on behalf of three photographers who were detained by or ordered by Los Angeles Sheriff’s Department Deputies not to photograph public places. Â For example, Plaintiff Shawn NeeÂ was detained in October 2009Â while taking photographs at a Los Angeles subway stop.Â Deputy Richard Gylfie ask Nee if he was in “cahoots with Al Qaeda” to sell his pictures “for a terrorist purpose.â€ Â After detaining Nee with the assistance of his partner Deputy Roberto Bayes, searching through the contents of Nee’s pockets, and holding Nee’s hands behind his back,Â Gylfie threatened to put him on “the FBI’s hit list.â€ Â An internal affairs reportÂ concluded that the sheriff’s department acted appropriately. Â You can read a more detailed account of Neeâ€™s detention with links to videoÂ here. Â The Nee lawsuit alleges that the LA Sheriffâ€™s Departmentâ€™s policy on photographers violates the First and Fourth Amendments. Â At last check of the docket, the Nee case was stayed pending contemplation of settlement. Â Any settlement will likely clarify the Sheriff’s department policy on detaining photographers.
ACLU v. Alvarez
In Illinois, a wiretapping law was used to prosecute citizens who recorded police officers making arrests. Â The ACLU filed a lawsuit challenging the wiretapping law. Â The Seventh Circuit Court of AppealÂ ruled that the First Amendment prohibited the prosecution of eavesdropping charges against citizens recording police officers performing their official duties. Â The United States Supreme Court declined to review the case leaving the Seventh Circuitâ€™s ruling to stand. Â There is no reason to believe the Ninth Circuit would rule any differently.
General principles to keep in mind
1. Â In California, the courts recognize a right to privacy and a corresponding cause of action for invasion of privacy. Â The elements of such a claim are â€˜(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.â€™ â€ Â (M.G. v. Time Warner, Inc.Â (2001) 89 Cal.App.4th 623, 631). Â If your photograph would publicize a private fact which would be deemedÂ â€œoffensive and objectionable to the reasonable personâ€ consult an attorney before taking and publishing the photo.
2. Â Generally, photographers are entitled to take photographs while standing in a public place of subject matter in plain view. Â Courts are loathe to recognize a right to privacy for persons and things in public. If you can lawfully be in a place, you can lawfully take a photograph ofÂ somethingÂ in plain view.
- ACLU has published a â€œknow your rightsâ€Â guide.
- The First Amendment Center has published aÂ guideÂ to Photography and the First Amendment in January 2012.
- USA Today columnist Andrew Kantor wrote thisÂ guideÂ in August 2006.
- The Ehline Law Firm wroteÂ this guideÂ to filming police.
Jeffrey LewisÂ is a certified specialist in appellate law by the State Bar of California Board of Legal Specialization. Â Mr. Lewis and the other attorneys atÂ Broedlow Lewis LLPÂ are experienced attorneys, who routinely appear in courts in Los Angeles, Orange County and San Diego and can advise you about your specific case.Â Â Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.