Photography Forbidden in Shopping Malls ?

<p>John H. You were looking for some legal authority.<br>

The legal principle goes back to no less an authority than Louis Brandeis in a range of Supreme Court decisions: Gilbert v. Minnesota, Whitney v, California, Olmstead v. United States and Packer Corp. v. Utah.</p>

 

 

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<p>The plain view doctrine only applies in a criminal setting.</p>

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John did not reference the plain view doctrine. That should be obvious to anyone not looking for a way to prove themselves right. John used the term "plain view" which we all, with Virginia's exception, understand.

 

 

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The legal principle goes back to no less an authority than Louis Brandeis in a range of Supreme Court decisions: Gilbert v. Minnesota, Whitney v, California, Olmstead v. United States and Packer Corp. v. Utah.

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Can you give some relevant quotes from or analyses of the decisions?

Virginia, these cases are totally irrelevant to the issue being discussed which, in your case, is that people have a general right to

not be photographed. Nor are they relevant to whether a privately owned business can ban photography on its premises.

 

And plain view, publically viewable ect. is not confined to 4th Amendment analysis. Especially, when its obviously raised in

the context of intrusion, vouyerism and the like.

<p>John and Jeff, the Brandeis cases are foundational cases on the general right of individual privacy. The courts since the '70s have said that malls may limit basic first amendment rights and presumably any behavior they find inconsistent with their business purposes.<br>

Here is a line of cases in which the law has evolved and the law as it stands today sides with the malls.<br>

Jeff, if you would like a clerks job in a law office so you can do your own legal research I would be happy to suggest a couple of firms you might apply to.<br>

In <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0326_0501_ZS.html" target="_blank"><em>Marsh v. Alabama</em></a> (1946), a case involving distribution of Jehovah’s Witnesses’ religious leaflets on a sidewalk in an Alabama town, the Supreme Court held that the central business district of a so-called “company town” was the same as a public street for First Amendment purposes. The justices said that when an owner decides to opens up private property for use by the public, the public’s rights apply in those spaces.<br>

In 1968, the Court in <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0391_0308_ZS.html" target="_blank"><em>Amalgamated Food Employees Union v. Logan Valley Plaza</em></a> extended the <em>Marsh</em> ruling to include a privately owned mall because it had taken on all of the “essential characteristics” of a municipally owned space. That’s an important distinction.<br>

But in 1972, the Court said in <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0407_0551_ZS.html" target="_blank"><em>Lloyd Corp. v. Tanner</em></a> that unlike in <em>Logan Valley,</em> there were alternative, traditionally public spaces — such as sidewalks adjacent to the mall, or public parks — where anti-war protesters could distribute handbills.<br>

And in 1978, in <em><a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0424_0507_ZS.html" target="_blank">Hudgens v. NLRB,</a></em> the Supreme Court effectively discarded its earlier rulings and said that unless property owners intended to make malls the equivalent of a public space, the First Amendment did not guarantee free speech rights in private shopping centers.<br>

You might also take a look at these two law review articles:</p>

<ul>

<li>Alexander, M. C. (1999). "Attention, Shoppers: The First Amendment in the Modern Shopping Mall". <em>Arizona Law Review</em> <strong>41</strong>: 1. <a title="International Standard Serial Number" href="http://en.goldenmap.com/International_Standard_Serial_Number"><br /></a></li>

<li><a title="Richard Allen Epstein" href="http://en.goldenmap.com/Richard_Allen_Epstein">Epstein, Richard A.</a> (1997). "Takings, Exclusivity and Speech: The Legacy of <em>PruneYard v Robins</em>". <em><a title="University of Chicago Law Review" href="http://en.goldenmap.com/University_of_Chicago_Law_Review">University of Chicago Law Review</a></em> (The University of Chicago Law Review) <strong>64</strong> (1): 21–56</li>

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<p>the Brandeis cases are foundational cases on the general right of individual privacy. The courts since the '70s have said that malls may limit basic first amendment rights and presumably any behavior they find inconsistent with their business purposes.</p>

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<p>Virginia, Malls are not their guests. Just because a mall can curtail activity on its property, because its property, doesn't magically grant special rights not to be photographed for people that happen to be there or anywhere else for that matter. Those cases are all wonderful for the issues they address and are of some value to the original post <em>which concerned whether <strong>a mall</strong> could ban photography on its property</em>. They have absolutely nothing to do with a broad encompassing right of people not to be photographed you keep asserting.</p>

<p>If your bizarre notions were accurate, standard photography practices that exist wouldn't exist. Photo.net wouldn't be able to exist in the form it does. Everything would be stages and releases shots. Newspapers wouldn't have unreleased images of people.<br>

'Right to privacy' actions that can be asserted by private people who are the subject of photographs concern four types of conduct... Misappropriation, False light, Disclosure of Private Facts and Intrusion. It is well settled law in the U.S. Your claim that there is a broad right not to be photographed at all is total nonsense. You don't know what you are talking about. Literally so, considering that you keep raising issues that are wholly irrelevant to help support this absurd claim.</p>

<p>Its time to give it up.</p>

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<p>If I object to you taking my photograph, you have no right to do so that trumps my right to have you not do so.</p>

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As John points out, none of the references above back up the statement by Virginia quoted here. Why do big name public criminals cover their faces when they are being led into/out of court instead of telling the police they don't want their photograph taken? It's because no objection can stop photograph-taking in the right places, except maybe a fist from a Alec Baldwin. That would stop me if it hit in the right place.</p>

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<p>"...except maybe a fist from a Alec Baldwin. That would stop me if it hit in the right place."</p>

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<p>If you were wearing those yellow superhero sunglasses I'd bet Baldwin would hesitate. Might even ask for your autograph.</p>

<i>"Why do big name public criminals cover their faces when they are being led into/out of court instead of telling the police they don't want their photograph taken? It's because no objection can stop photograph-taking in the right places,"</i><br><br>That's because it is news and concerns the freedom of the press, which outweighs the person in the news' right to privacy.<br>It has to be real news, though. Something we cannot be denied, must be told. And very little of what is in the press/media qualifies, yet it all sails under the protection of that...<br>But anyway, you or i walking down the street is a different matter, Jeff.

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<p>That's because it is news and concerns the freedom of the press, which outweighs the person in the news' right to privacy.<br />It has to be real news, though. Something we cannot be denied, must be told.</p>

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<p>There is no constitutional right to privacy in public. And what's news? If I own a small local newspaper and I photograph people going into the store on Christmas and tag an article "Last Minute Shopping" and post the picture of people rushing into the stores, that's news as much as photographing some criminal doing a <em>perp walk</em>. If I have a news blog, and post the same article and picture, that's also news. As far as I know, freedom of the press doesn't only apply to the New York Times. Anyone can start a news blog or newspaper and have the same protections to publish pictures (other than direct use of the picture to advertise a product. Then you need a release.) </p>

<p>Lawyers-did I stick my foot into it??</p>

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<p>"Anyone can start a news blog or newspaper and have the same protections to publish pictures..."</p>

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<p>Pretty much. But bloggers might run into <a href="http://goo.gl/0GIEt">this problem</a>. (Photo from an Austin nightclub during SXSW a couple of years ago.)</p>

<p>Lex, your poster with the cuss words reminded me of something else. Freedom of speech. Posting or publishing photos or writing a book on anything , even how to blow up a building, cannot be stopped either. Of course if you defame someone, you can get sued. But pictures, words, cartoons, art, sculpture, computer games, books, posters, picketing, etc are all speech and these are protected as well as freedom of the press. </p>

<p>Actually its not that we're granted freedom to speak or publish, it's that the government cannot impede our rights to do these things. (other then defamation or copyright laws which are also protected and granted in the Constitution.</p>

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<p>As far as I know, freedom of the press doesn't only apply to the New York Times.</p>

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<p>The law must apply equally to everyone. A journalist or newspaper reporter is merely a member of the public who works as a journalist or newspaper reporter. there are no exceptions to the law or special laws just for journalists.</p>

 

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<p>Then you need a release.</p>

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<p><br /><br /><br />Need is a strong word. You don't <em>need</em> a release and there is no legal requirement for it but it's very useful to have if there is ever a problem in order to clarify an agreed situation - same with contracts. When everything goes to plan, no one needs to consult them.</p>

<p>Without a release you'll find it tough to persuade a reputable stock agency to accept for commercial use any shot with a recognisable person or part of a person in it, and thats the route taken for most photographs used commercially by other than the photographer him/herself. That's not really a legal issue but a business one. Stock agencies don't want to explain to their clients why a photograph they procured from them has resulted in a legal issue for the client, so they avoid the risk. They may take the image for their editorial files. <br>

All of which is irrelevent to the point of whether an individual has the right to insist that they are not photographed in a public place. With certain narrow exceptions, and I believe France is one, I think the photographer is free to photograph what or who he wants from a public place whether subject or subject's owner agrees or not. </p>

 

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<p>With certain narrow exceptions, and I believe France is one, I think the photographer is free to photograph what or who he wants from a public place whether subject or subject's owner agrees or not.</p>

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<p><br /><br />This is a common understanding however, when I looked into the french law on the subject, it was very similar to US and UK law and did not apply in a public place. <br /><br />I think the legal implications for use in France are a bit more complex though.</p>

<p>From this: http://4020.net/words/photorights.php#oseas</p>

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<p>With the passage of the <em>Presumption of Innocence and Rights of Victims</em> legislation in 2001, the publication of any photograph of a person without their express consent is prohibited in France. This applies to <em>all</em> photography, and is irrespective of editorial or artistic or personal or advertising use. There is anecdotal evidence that things are even more restrictive in practice, with some members of the public and Police occasionally trying to prohibit people from merely <em>taking</em> photographs, which in fact the PIRV law does not ban — only their <em>publication</em>!</p>

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<p><em><strong>It has to be real news, though... ..you or i walking down the street is a different matter</strong></em></p>

<p>Neither of these are accurate.</p>

<p>Real news in a newspaper? Occasionally I suppose.</p>

 

More reliable than Internet forums.

<p>If I owned a shopping mall, I would absolutely delight in exercising my legal right to have blatantly inconsiderate photographers/videographers/amateur legal scholars removed from the premises by burly security guards. To make it even more fun, we can dress the guards as Star Wars Imperial Storm Troopers. The costumes would encourage legions of smartphone wielding patrons (i.e. legitimate customers) to photograph and videotape the perp walks and paste clips on their social media pages. We could sponsor a "public nuisance of the month video contest" to spur participation. </p>

<p>I need to win the lottery. That sounds like too much good fun.</p>

 

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<p>Like Ilkka or Ann, I am able to view the USA from outside and, sadly, it has become almost painfully comic to hear Americans tell themselves they are a free country.</p>

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<p>At least we enjoy freedom from VAT. Every time I go to Europe - yes, I'm one of those Americans who has traveled abroad - I am coerced into paying a 17 or 18 percent sales tax on every pound/euro/kronor I spend for services that I'll never use. I wonder whose children I have sent to college over the years. Taxation without representation.</p>

<p>Yes, my country (USA) faces issues and challenges just as every nation does. But don't assume that we are not aware that those issues exist. Change happens slowly here. Public opinion needs to reach a tipping point before we can push major changes through our political system, and the best course of action is often hotly debated.</p>

<p>Despite this apparent limitation, we have made many, many positive strides in our relatively short history. Look at the family that lives in the White House today and imagine the likelihood of such a thing happening in 1961, the year when our current President was born. </p>

<p>The point is that WE make our own decisions. Our government doesn't need to decide to do what's best for us. Submitting to government mandates would constitute a real lack of freedom in our way of thinking. The delays may be frustrating, but we like the way that our system works.</p>

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<p>More reliable than Internet forums.</p>

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<p><br /><br />Have you read The Daily Mail?!</p>

<i>"The point is that WE make our own decisions. Our government doesn't need to decide to do what's best for us. Submitting to government mandates would constitute a real lack of freedom in our way of thinking. The delays may be frustrating, but we like the way that our system works."</i><br><br>A constant source of amusement: how democracy is held up as one of the highest goods, a people elects a government putting that highest good into action, and then continue their daily life in a them-vs-us mindset in which their democratically elected government is seen and treated as Public Enemy No. 1, instead of a democratic institution, i.e. "us".<br><br><br>By the way, Dan: sales tax (VAT) is hardly an unknown entity in the U.S. of A. Or is it?

QC, the USA does not have a national sales tax like the VAT. Some (not all) states impose a sales tax on some (not all) items, but these

taxes are generally around 6 percent, not 18 percent. And some items are exempt, groceries and medicines for example, and in some

states non-luxury clothing is not taxed.

 

Americans pay far less in taxes than most Europeans do. Our top income tax rate is 39.5 percent, and applies only to about one person

in 200. There's no VAT here, and our fuel costs a lot less, for example.

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<p>"A constant source of amusement: how democracy is held up as one of the highest goods, a people elects a government putting that highest good into action, and then continue their daily life in a them-vs-us mindset in which their democratically elected government is seen and treated as Public Enemy No. 1, instead of a democratic institution, i.e. "us"."</p>

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<p>The U.S. isn't a democracy. Our federal government is a representative republic. A democracy is two wolves and a sheep voting on what to have for dinner. A representative republic puts a shepherd into the mix. And our concept of a republic is uniquely different from the historical European concept of a republic.</p>

<p>At least that's the principle. Doesn't always work in practice.</p>

<p>It's the Constitution that protects the sheep and other minorities and their viewpoints. Not the representatives. After all, they represent the majority wolves and will vote for lamb kabob. </p>

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Lamb kebab is on the menu because a surprising number of the sheep neglect to vote. The wolves, on the other hand,

are an organized and motivated minority.