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Regulating Drones under the First and Fourth Amendments

2015; Routledge; Volume: 57; Issue: 1 Linguagem: Inglês

0043-5589

Marc Jonathan Blitz, James Grimsley, Stephen E. Henderson, Joseph T. Thai,

Legal Systems and Judicial Processes

Thus, it seems problematic to insist, as some lower courts have, that photography conducted for and aesthetic purposes lacks the First Amendment protection that would almost certainly prevent government from censoring a professional photographer, filmmaker, or photojournalist. (199) The courts that have reached such a conclusion did so on the ground that purely photography is not inherently expressive, and thus only counts as when there is additional evidence that the picture-taker has a communicative purpose. In Porat v. Lincoln Towers Community Association, a federal district court found that the First Amendment did not protect digital pictures taken of a building complex by a hobbyist because the photographer could not demonstrate he had an intent to communicate a message to an audience. (200) In Larsen v. Fort Wayne Police Department, another federal district court likewise found that a father trying to videotape his daughter's choir performance at a public school was not engaged in First Amendment speech because he was videotaping not to communicate about the performance but rather only for archival purposes, that is, 'for family documentation of [his daughter's] childhood.' (201) This logic has two serious flaws. One is that even recreational or personal photo-taking typically results in some sharing of images: dedicated photo hobbyists rarely keep their work entirely from view. They post photos they capture on websites such as Shutterfly or Picasa, or, at the very least, show them to friends and colleagues. Parents who document their children's activities likewise typically do so intending to share their videos or photos with their children and other family members. Though they might not share close to all of the photos they take, this does not distinguish them from photojournalists who might take tens or hundreds of photos intending to use only one of them. Moreover, even when an individual takes photographs or videos only for his own benefit, this does not make his photography or videography any less expressive than the written expression in a private journal (which would likely be staunchly protected by the First Amendment against government restriction or punishment). (202) A second difficulty in distinguishing protected photography from unprotected surveillance is that if that distinction cannot be based on attention to artistic detail, then there are similar problems in basing it upon the capturing person's goals or objectives. Photography is often as much about seeing and learning about aspects of the world that were previously invisible as it is about giving expression to a message, feeling, or story. Indeed, for some of this seeing and learning about new things, people may not only take many photos or videos with drones, smartphones, and wearable cameras (such as the GoPro cameras one can wear on a helmet or mount on bicycle handlebars)--they may use automated image capture, perhaps having a wearable camera continuously film the action unfolding in front of them. (203) Such automated image capture seems very similar to image capture taken from a street lamp or an overhead drone. Where then, precisely, would courts draw the line between photographic activity that is entitled to First Amendment protection and nonphotographic activity that is not? In his detailed argument for giving all such image capture First Amendment protection, Seth Kreimer argues that any such line is constitutionally irrelevant. To Kreimer, even ambient image capture--not only premeditated image capture--should count as part of the conventional photographic activity firmly protected by the Free Speech Clause. (204) This argument has power, but seems to cut against the strong intuition that use of video for surveillance has less in common with photography than with nonspeech information gathering, such as electronic eavesdropping or location tracking. As if that were not trouble enough, there is a second problem with First Amendment jurisprudence that limits constitutional protection for drone- or other image-based capture to capture that has some artistic or expressive quality: the First Amendment value of images often lies elsewhere. …