Fifth in a series on laws affecting photographers and the models they work with. I'm an MM photographer and a licensed Texas attorney. For liability reasons I won't be giving any legal advice here - just some basic legal principles. Consult an attorney if you have any specific legal situations of your own. Remember that laws vary from state to state and country to country, and federal law may trump state/local laws.
Is photography protected by the First Amendment?
Yes - but like every other right it is subject to reasonable restrictions.
It is important to recognize that this issue has never been directly decided by the U.S. Supreme Court. But it does follow from the Court's opinions in other areas.
There are at least two theories under which photography is protected free speech.
The first is that it is an artistic expression, just like a painting or sculpture. In the Hurley case, Justice Sutter wrote that the "painting of Jackson Pollack, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll" are "unquestionably shielded" by the First Amendment. Souter wrote this to emphasize that there is no requirement that a specific message be contained in the communication in order for it to qualify as protected speech. And you really can't get farther away from a specific message than a Jackson Pollack painting.
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The second theory is that photography can serve an important editorial function. There is really no debate that a war photographer or a New York Times photographer are directly engaged in protected speech. They are documenting important historical events for purposes of educating the citizenry.
One apparent requirement under any theory, however, is an intent to communicate with others. If you are snapping pics just for your own use, this activity might not be Constitutionally protected. Of course, this is not an issue for us MM'ers, since we want as many people as possible to see and appreciate our work.