The right of individuals to take photographs in public places is eroding. A simple Google search reveals countless incidents involving people being detained, questioned and in many cases arrested for lawfully taking pictures of people and structures that are in plain view of the general public. These people have been harassed, embarrassed and charged with crimes pursuant to broadly worded criminal statutes. They have had their cameras confiscated and their memory cards, sometimes containing thousands of pictures, deleted. It is my belief that the War on Terror and the War on Drugs have given law enforcement officials a false sense of authority to charge individuals pursuant to broadly worded criminal statutes never intended to curtail the conduct at issue, vague notions of “national security,” and/or nonexistent laws (e.g., “the 911 law”). Additionally, law enforcement officials have every incentive to target a photographer who has documented misconduct or wrongdoing on behalf of police officers. It is necessary to preserve journalism and photography as a check on police authority. It is also necessary to preserve the right to a free press and photographic expression. Rights are in part dependent on effective remedies. This article discusses and evaluates the remedies available to those whose right to take photographs in public has been violated by law enforcement officials and/or private security guards, including remedies available pursuant to: (1) 42 U.S.C. 1983 (2) Bivens (3) Injunctive and Declaratory Relief (4) state tort law, and (5) The Federal Tort Claims Act. This article discusses the obstacles associated with each remedy and the reasons why these obstacles are particularly difficult within the context of photography. This article argues that most, if not all of the remedies discussed are either inadequate, unlikely to hold up in court, or altogether impractical when the costs of litigation are considered. Lastly, this article will discuss the reasons why people should be concerned about the erosion of photography rights and possible ways to reverse this trend.
Available at: http://works.bepress.com/morgan_manning/2/