“Congress shall make no law…abridging the freedom of speech, or of the press.”
That’s the protection citizens gained when the First Amendment to the Constitution of the United States was ratified on December 15, 1791.
That amendment, of course, makes no specific mention of a freedom to photograph. Nearly a decade would pass before anyone tried to create what we might recognize as the photographic process, and over a hundred years would go by before consumers began buying cameras when the first of the Kodak “Brownie” line went on the market.
Now, thanks to the advent of smartphones and digital cameras, thousands if not millions of photographs are created every day by Americans while at home and traveling abroad.
But how free are we to shoot photos in the U.S.A., especially on government property bought and maintained with taxpayer dollars?
That question arose when the news media recently reported on a controversial proposal by the U.S. Forest to require payment of $1,500 by those planning to shoot photos on lands which it manages.
According to The Washington Post and The Oregonian, photographers and filmmakers could be fined up to $1,000 for failure to get a permit before shooting, at least in “wilderness” areas established pursuant to the 1964 Wilderness Act where “commercial” activities are prohibited.
Both newspaper stories note that some critics of the proposal claim that it would infringe on First Amendment free speech protections, particularly where the photography or filming is done for non-commercial or news publication.
Update, October 11, 2014: Current.org reports that public broadcasters and journalists and planning to contest the U.S. Forest Service restrictions on filming.
Like the U.S. Forest Service, the National Park Service has requirements for filming on lands within its jurisdiction that may raise First Amendment issues. To find out what is okay and what is not okay to photograph, film, or make an audio recording off, check the Website (like this one for Sequoia and Kings Canyon National Parks) for the park you plan to visit.
Permission from (and possibly payment to) a federal, state, or local government prior to shooting still photos or video/film in public areas is commonly required for advertising or Hollywood movie “shoots.” A permit may be required even if “The Happy Couple” hires a professional photographer to take post-ceremony shots of them and their wedding party on public property.
For example, professional photographer Kat Forder has complied an extensive list of locations, including those under the perview of the federal govenment, in and around the Washington, D.C. area that require permits for photography.
So what do you do if your “photo/film shoot” might involve (upfront or later) some monetary gain? Sean Malone’s 2011 article for VirtualStudio.tv has some practical tips for how to deal with the issues of shooting in “public places,” and points out that some locations that are open to the public (shopping malls, restaurants) may not be “public” in the same sense as those owned by a government entity.
And this 2012 Lifehacker story addresses issues that arise when you are (or may think you are) shooting in “public.”
Writing for PhotoSecrets, copyright attorney and San Jose State instructor and co-author of the Multimedia Law and Business Handbook, Dianne Brinson, provides some general commentary on copyright, privacy, and permission as it relates to photography.
“Free speech” doesn’t mean that in the U.S. everyone is completely free to say anything, anytime, anywhere about anyone or any topic. There are limits.
So when you pull out your camera or smartphone to “point and shoot” still photos or video, don’t be surprised if someone rightly or wrongly challenges your right to do so.