Mall security guard forced me to delete

[jeff_conrad]

<p>Free Rider, <em>Legal Handbook for Photographers</em> is by Bert Krages, author of <a href="http://www.krages.com/phoright.htm">The Photographer's Right</a> . It's an excellent basic introduction for those interested in the legal stuff, but you still need to know the applicable laws in your area.</p>

<p>I have the book, and can't find anything that implies that a mall cannot prohibit photography—it depends on the location. At the bottom of page 12, he states, “In some, but not all states, large shopping malls are considered traditional public forums when they have common areas that invite the public onto the property for purposes other than shopping.” California is one of those states (the concept first gained prominence in <em>Robins v. Pruneyard</em> in 1979), but not all property open to the public is considered a public forum (e.g., a large standalone store such as Home Depot or Wal-Mart is not), and even a property that is may establish time, place, and manner restrictions. To my knowledge, the only activity that has actually been tested in the California courts is signature gathering, so I don't think the issue is settled for photography in a city with a criminal trespass ordinance. And I have no idea how this has been applied in other states.</p>

<p>Again, if you want to argue with mall security, you need to know the law in your area. What you know for sure that just ain't so could get you arrested. To me, it doesn't seem worth it.</p>

[stephen_asprey2]

<p>Its so easy to get this correct. Look at where your feet are standing. Private property (which a mall is) or public space like the sidewalk? Look at where your subject is standing. Same rule. Now you know.<br>

If you are good though, you won't be noticed. Thats the essence of candid photography.</p>

[jeff_conrad]

<p>Stephen, I don't know why you keep bringing this up. We don't all follow Australian law, and in some parts of the United States, it doesn't matter where you or your subject are standing, making it really simple to get it correct. Parts of California fit this description; so apparently does Oregon (where Krages is from). And I know of no place in the U.S. where you can't photograph people or things on private property from public property. What governs is the law, not someone's opinion.</p>

[f_r2]

<p>There are two definitions of "public". </p>

<p>One definition has to do with whether the government owns the property or not. The other definition has to do with whether the public uses the space or not, no matter who owns it. </p>

<p>The public does not use a private home, for instance. The public does use a restaurant. That means that smoking a legal substance such as tobacco can be banned in restaurants by the government, but it cannot be banned in private homes. </p>

<p>Public v private property and public v private space are two different concepts.</p>

[hugh_j.]

<blockquote>

<p>That means that smoking a legal substance such as tobacco can be banned in restaurants by the government, but it cannot be banned in private homes.</p>

</blockquote>

<p>Sure it can, if the activity is deemed a health hazard or nuisance to those living in close proximity. Just this past January here in the Californian city of Belmont, for example, smoking was officially banned inside all private multistory apartments and condominiums, whether owned or rented. Most of the rest of the state isn't quite as tough, but still allows landlords to regulate smoking at their own discretion, and they are allowed to do it because it's their private property.</p>

[f_r2]

<p>Has that been tested by the Supreme Court? </p>

<p>Just this past January makes it a test to see how far they can go. </p>

<p>Another question is whether a multistory apartment is a public space or not. Did they ban smoking in one's bedroom, whether rented or owned? Or in the hallways and on the public spaces within the private property?</p>

[jeff_conrad]

<p>The ban covers all areas of multi-family dwellings. To my knowledge, the law has yet to be challenged.</p>

<p>A property owner can prohibit smoking, but the power to do so has nothing to do with private property. For most legal purposes, the tenant <em>is</em> the owner. Whether smoking (or anything else) is permitted is a matter of contract—if the lease or rental says smoking is prohibited, it is. If not, there's nothing the property owner can do about it, at least until the rental agreement expires. In Belmont, of course, the property owner cannot even allow it.</p>

<p>Again, whether an area is a private or public space is irrelevant. The law is what governs; we can argue here forever about definitions (if we haven't already), but it is to no effect.</p>

[f_r2]

<p>Public or private space is definitely relevant.</p>

<p>I'll give you another example. In a public space, you cannot exclude people who are, for instance, foreigners. The mall, being a privately-owned public space, cannot say that foreigners are excluded. In your privately-owned private space, your home for example, you can indeed exclude foreigners should you feel so inclined.</p>

<p>Huge effect.</p>

[hugh_j.]

<blockquote>

<p>I'll give you another example. In a public space, you cannot exclude people who are, for instance, foreigners. The mall, being a privately-owned public space, cannot say that foreigners are excluded. In your privately-owned private space, your home for example, you can indeed exclude foreigners should you feel so inclined. Huge effect.</p>

</blockquote>

<p>Huge effect, if only it were actually relevant. But it's not, and I've already addressed this red herring a few posts up. The rules within the United States are clear. With very few exceptions, if you are physically standing on or in privately owned property, whether or not that property is open to the public, you are required to act according to the rules, posted or not, established by the property's owners or the owners' authorized representatives, within the limits of the law. If you are asked to leave and refuse, you can be charged with criminal trespass. End of story, that's the way it is, and arguing semantics here isn't going to change that basic fact.</p>

<p>Barring a group from entering an otherwise publically accessible space due to their race, religion, gender or ethnic origin is generally a violation of the law and/or civil rights in most if not all United States jurisdictions. Prohibiting photography on privately owned property breaks no such laws. The two are completely irrelevant.</p>

[jeff_conrad]

<blockquote>With very few exceptions, if you are physically standing on or in privately owned property, whether or not that property is open to the public ... If you are asked to leave and refuse, you can be charged with criminal trespass. End of story, that's the way it is</blockquote>

<p>Hugh, can you support this or are you just making it up? How many jurisdictions' (or even just states') laws have you examined? The way it is is that whether you can be charged with criminal trespass on private property depends on whether there is a law to that effect. Krages says essentially the same thing. California and Oregon have not enacted such laws; for all I know, they may be the only ones not to have done so, but since I'm not planning a 50-state tour to photograph shopping malls, researching other states' laws isn't high on my list of priorities.</p>

<p>What's really a waste of time is presuming to speak <em>ex cathedra</em> and continuing to utter unsupported generalizations. Again, it's whatever the applicable law says. What is so difficult about that?</p>

<p>Having said that, I agree that arguing semantics is pointless.</p>

[f_r2]

<p>It's not the semantics; it's the concept. There are three types of spaces in question here: privately owned private space, publicly owned public space and privately owned public space. A mall is a privately owned public space.</p>

<p>If the mall security asks a person to leave a mall because that person is speaking a foreign language (not a crime of any sort), they cannot have the person arrested if he/she refuses to leave. What would the police officer charge the person with? What would the judge say? Don't you think that the person, if arrested, would have a wonderful civil case against the mall?</p>

[jeff_conrad]

<p>The concept isn't really relevant to the OP. Certain forms of exclusion (e.g., of foreigners) is prohibited by the Civil Rights Act of 1964; Title II covers privately owned public accommodation, and Title III covers public facilities. Some states afford additional protection (e.g., the Unruh Civil Rights Act in California). I don't think anyone here disputes this, so I'm not sure why it keeps coming up.</p>

<p>But regulation of other activities is left up to the states, and different states approach it differently. As Krages indicates, in some, but not all, states, large shopping malls are considered traditional public forums if they have common areas that invite the public for purposes other than shopping. In such places, the owner's right to exclude is less than in other places. If the concept of a traditional public forum has the same meaning as on public property, then photography is probably protected, even if a local jurisdiction has a criminal law. But I don't know that the call has yet been made.</p>

[dlambert]

<p>In China it's easy, on every mall door there is a no-photography sign! Of course people still take pictures, especialy in the Ikea stores. But at least the guards have something to back themselves up.</p>

[f_r2]

<p>My example was "speaking a foreign language", not something protected by the Civil Rights Act (anybody can speak a foreign language). Instead, it is more a freedom of expression issue, which happens to be very similar to the restriction of freedom of expression through photography.</p>

<p>Again, if you're disturbing the peace by annoying others with your behavior (shouting in peoples' faces, or shoving your camera at them), there is a different issue. It's not a photography issue but a disturbing of the peace issue.</p>

[jim_poulos1]

<p>I am not a mind reader so I become very offended when someone approaches me with an unwritten rule and is very nasty about it as if I am supposed to know. THAT is the only objection I have with the way photographers are treated at malls. They should post the rules - after all they post rules about just about everything else. If they do not post the rules then they should be very polite in the manner they first approach photographers instead of rudely barking orders<br>

The only experience I had with store security was when I was on a chartered train ride. The organizers of a charter had arranged for a lunch break while the train pulled into a yard - since a Costco was the only entity in the area that had food service the organizers of the train ride had pre-arranged with that Costco to expect around 300 people for lunch. When we tried to enter the Costco as per the arrangement we were stopped by security - the problem was that the trip organizers failed to tell Costco management that railfans carry cameras!<br>

We had to wait outside the store while the trip organizers met with the Costco manager - finally Costco let us in on the promise that we would not take pictures in the store. This happened back in the day when film was still widely used - lets just say it was worth their while in film sales alone that day!</p>