THE FIRST AMENDMENT AND PHOTOGRAPHY

THE FIRST AMENDMENT

THE RIGHT TO PHOTOGRAPH IN PUBLIC SPACES

The Constitution protects me in more extensively as a journalist, but I am also covered as a citizen. The First Amendment grants us the right to photograph in public spaces. This is a cornerstone of a free and open society. This right upholds our fundamental ability to document and share the world around us.

I had three experiences similar to this and the one I mentioned, just a few weeks ago, where my civil rights were stomped on. In this current event, I was told you need a permit to do any photography, whether you’re a journalist or doing it for personal use; all photography needs a permit. And get this—on the county’s website, it states “for personal non-commercial use.” It is my opinion that they are exposing themselves to a potential liability issue.

THE CHILLING EFFECT – PHOTOGRAPHY POLICY

For non-commercial, personal-use photography, a permit and fee are required. Yes, you read that right—personal use photography. Then they supply the number to call to obtain a permit and pay the fee for personal use photography. I know, I repeated myself. I can’t believe it’s actually written in a policy.

By putting those words on their website, they are sending a clear message to every person, artist and photographer. They are saying that even if you are alone with one camera, you are not welcome to create unless you pay and get permission first.

For commercial use photography, you must call a different department and a different phone number. BE VERY CLEAR – Journalism is not defined under “commercial use.”

• Journalism is not Commercial: In a legal and ethical sense, journalism is the act of gathering information for the public interest. It is not “commercial” because you are not selling a product or a brand; you are documenting.
• The Missing Category: The park’s policy ignores the role of the journalist and the artist. By only offering “personal” or “commercial” boxes, they force you into a category where you don’t belong.
• The Burden of Permission: Requiring a journalist to call a department for a permit is a form of control. It suggests that the “field” can only be recorded if the state approves of the person holding the camera.
• Impact on the Land: Most park rules for “commercial use” are meant for big crews with lots of gear, lights, and models. If you are alone with one camera, you are not taking up space or hurting the grass. You are just a person legally standing in a park.

WE  ASK: What legal principle permits a government to charge a fee for the mere act of creating constitutionally protected artistic expression in a public park when the photographer is making no special use of the property beyond that available to ordinary park visitors?

THE FINE ARTIST:

I will be interviewing attorneys to get down to every last detail, including the fine artist.

• Commercial vs. Fine Art: Commercial photography usually means you are hired to sell a product or a brand. If you take a photo of a tree because its beauty moves you, that is art. “The photographer’s commercial intent is not determinative under the current federal NPS photography statute.” (See below.)
• The Artist’s Right: When a park only gives you two boxes—”personal” or “commercial”—they ignore the artist. They try to say that if you ever make money from your work, you must be a business. But an artist is a citizen sharing a vision, not a company running a photo shoot.

By forcing a photographer or citizen taking a picture into the “commercial” box, they are trying to tax your talent. They are treating your sacred ritual of documentation like a business deal. This is how the “Missing Category” hurts the artist. It fails to see that creating art is a service to the world, not just a way to make a sale.

BERRY VS. NEW YORK

The case is Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996). You can read the full decision through these reliable legal archives:

• Bery v. City of New York – Full Text via CourtListener
• Bery v. City of New York – Case Summary and Details via Artist Rights

This ruling is a pillar for the artist’s argument because it explicitly states that visual art—including photography—is not just “merchandise.” The court noted that the sale of art is often the only way for an artist to reach their audience.

By labeling anyone “commercial” just because they might sell a print, the park is ignoring this federal precedent. They are trying to treat the artist’s expression as a business transaction, but the law says art is protected speech first.

• Art is Speech: The court in Bery was very clear. They said that “paintings, photographs, prints and sculptures… always communicate some idea or concept to those who view it.” This means your photography is not just a hobby or a business; it is legally recognized as protected speech.
• The “Total Ban” Argument: The court ruled that New York City’s requirement for a vendor license was a “de facto bar” that prevented artists from sharing their work. You can argue that the park’s permit policy does the same thing. By only offering a “commercial” box, the county park authorities are effectively banning the solo artist who cannot or should not have to pay a business fee to exercise their right to speak.
• Content Neutrality: While courts do allow “time, place, and manner” restrictions, those rules must be narrow. If a park allows a tourist to take a photo of a tree but stops you because you might sell it later, they are discriminating based on the “content” or the “intent” of your speech. Bery argues that the act of creation is protected regardless of whether a sale happens later.
• The Burden of Proof:  If you are a solo documentarian with one camera. You are not a “commercial” entity. In legal terms, the burden should be on the state to prove you are causing a disruption that justifies a permit. It should take into consideration whether you aren’t blocking paths or disrupting anyone or anything, and you are simply a citizen/artist/photographer in a public space. The state must show a “significant government interest” to limit your speech. They consider art including photography “speech”.
• The Tourist Test: (For my other park experiences, not this one; this park does not allow tourists to take pictures) If a tourist can take the same photo without a permit, then the park is judging you based on who you are, not what you are doing. This is often seen as unconstitutional.

THE FINE ARTIST

A fine artist is not necessarily conducting a commercial production simply because the finished artwork may eventually be sold. If an artist stands in a public park with a single camera and tripod and photographs a tree as an act of artistic expression, the photograph is itself an expressive work.

The First Amendment protects artistic expression, including visual art, and that protection does not disappear merely because the artist may later sell or license the finished work. The relevant question, therefore, is not simply whether the artist might make money from the photograph. It is whether the County may lawfully require an artist engaged in this kind of ordinary, non-disruptive artistic activity to obtain a permit and pay a fee merely because the resulting artwork has commercial value.

That is a very different question from regulating a commercial production involving a crew, models, equipment, staging, exclusive use, or other activity that imposes a distinct burden on the park.

So, I took some pictures of the tree in the park. I may or may not sell them tomorrow or in 20 years. Maybe tomorrow I decide to make a print and sell it. Maybe I put it in a gallery ten years from now. Maybe my children inherit it, and it never gets sold at all.

What was I doing when I stood in the park and pressed the shutter? I was making art. The possibility that the photograph might someday have monetary value doesn’t change what I was doing at that moment. I wasn’t conducting a commercial production. I was an artist creating a photograph.

TRAVEL 2 HOURS TO TAKE A PICTURE OF A TREE

Yes, we’ll use the tree example again. You drive two hours to see it. Two hours. You pack a lunch, you fill the gas tank, you’re humming along with the radio.

You get to the park. There are no signs at the gate. No little placard nailed to the trunk itself. Nothing to tell you that what you’re doing—what every person with a phone has done since 2007—is wrong. Just an employee, standing between you and the tree, telling you that you must go get a permit and pay for it before you take that picture with your cell phone.

So let’s say you obey. You’re a law-abiding citizen, after all. What do you do now? Drive back home? No—you drove two hours to photograph this tree, and you haven’t photographed it yet. You are absolutely determined to get a picture of the tree.

No one returns your call at the permit office. That’s right, you realize. They do not work on Saturdays. But you must have the picture of the tree. So you find a hotel room instead. You call the permit office on Monday morning and wait for a callback that may or may not come. How many days does that take? Three? Ten? The permit office doesn’t say.

In the end, what do you have? Four hours of driving, round trip. A hotel receipt. A phone with no picture of the tree in it.

And remember: you are not a corporation filming a commercial here. You are not a wedding party with a drone. You are nothing more than a person who wanted a picture of a tree—to put on your Instagram.