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Do you have the right to snap?

One of my favorite YouTube channels brought up an interesting point the other day.

“Street photographers” go out taking shots of street scenes, often focusing on interesting people. But, do they have a right to do this?

The married couple leading the discussion asked folks to leave a comment with their thoughts on the matter. I couldn’t narrow down my thoughts to just a sentence or two.

Tony and Chelsea Northrup give lots of great videos on camera equipment, but in this episode they debated whether or not there should be laws passed requiring photographers to get permission from folks before taking their photos.

Tony brought up that the law in Germany doesn’t allow photographers to take shots of folks on the street without permission.

I looked it up. In 1907, Chancellor Otto von Bismarck had his photo taken on his deathbed. This outraged lawmakers, who passed Paragraph 22 of something called Kunsturhebergesetz. It forbids the publishing of pictures without the consent of the shown people — if those people can be recognized.

There is an exception allowed in Paragraph 23 for when people are more of an accessory in the shot. For example, you want to take a photo of a famous Catholic church, but there is never a time when the sidewalk is clear of pedestrians. You can take a photo of the church because the people are incidental.

Another exception would be a known public event like a parade or outdoor concert where those entertaining have a reasonable expectation of exposure.

So should the U.S. have some type of law like that?

As a husband and father to a teenaged daughter, Tony says he would like to see some kind of law that protects his family from creeps.

Remember, in March 2014, a Massachusetts high court ruled that it is not illegal to secretly photo women from angles that could expose more of their skin — such as down their blouses or up their skirts from below.

Six months later, the Texas highest court of appeals threw out a state law banning such upskirt and downblouse photography/video recording. The court called the law a violation of the artists’ First Amendment right to freedom of speech and expression.

This seems rather odd to me since many states have laws against “peeping Toms” peering into houses through doors or windows. Judges don’t consider any artistic expression to filming someone undressing at home.

As a photographer, how do I feel about passing a “permission” law?

First off, I don’t like big government, so I don’t like the idea of passing a bunch of laws in general.

In this case, I go back to my old standby. I’ve said this before in this column. We have freedom to do what we want in the country — right up to the point that it infringes on someone else’s rights.

We can take all the photos we want — until it is harassing someone and making them uncomfortable.

Even as a red-blooded American male, I am shocked at how many sexually explicit photos the paparazzi take of women every day. Most A-list actresses have been caught at one time or another getting out of a vehicle in a skirt by some dirty-minded camera man. Then they sell these photos to whatever magazine/tabloid/website will pay for them.

Is this not infringing on the rights of others?

As a journalist, if I take a photo where a person/people are the main subject of the art, then I’m expected to get names of the people. I go over and speak to folks; I let them know who I am and where the photo will be used.

When covering ball games, I would sometimes take a photo of the cheerleaders, but I would check with them first. Sometimes in the noise of the gym I wouldn’t bother trying to yell, but rather I would wave at them, point to my camera and give a questioning thumbs up. Then they could get composed and make sure all skirts were in place before the photo was taken.

This is reasonable to me.

Why is it a good idea to check with people first?

Three times in my career I have had a teacher pull me aside and ask that I not use any photo with a certain student visible.

Twice it was because the child had come from a home with a history of domestic violence. The mother had moved to a new town and enrolled the child in a new school. The mom didn’t give consent to any photos because it was possible that photo could make it in front of the abusive man and give away their location.

The other example was a similar story where the mother didn’t want the father to know where she was. However, in that case, after a divorce court judge gave custody to the mom, the father tried to pick the boy up from his grade school and leave with him. Luckily, the school already had been notified of the judge’s ruling and didn’t let the boy go.

Now, like the German law, there should be a reasonable expectation of exposure if someone is participating in a public event.

It was around 2004 when I received an invitation from Bernhardt Furniture to a press conference with Martha Stewart. She and the company were announcing a new licensed furniture collection.

So that I could focus on writing the story, I got my buddy David Amundson (R.I.P.) to go with me to take photos.

At the end of the conference, we were preparing to leave when four people surrounded us. They said they were with Martha’s team. She hadn’t authorized us to take photos, so all photos would have to be deleted from our camera.

This was insulting. This was a press event. I was invited there by the manufacturer, whom I had known for a few years at this point.

The redneck in me was about to surface. David was about 6-foot-3 and broad-shouldered. He used to be a male model in his younger days — that’s how he got interested in photography.

I said, “I don’t think so.”

David and I weren’t going to be pushed around by four people. I liked our odds.

I looked around at David, and he was hurriedly deleting all his photos.

“What are you doing?!?”

“Man, I don’t want any trouble.”

So much for standing my ground.

As for coming up with a law, that seems mighty tricky. No, I don’t think upskirt photos have anything to do with Freedom of Speech. But, as Texas has shown, any type of law preventing this would have to come in the form of a Constitutional Amendment or a Supreme Court ruling over a federal case. And I’m not really comfortable with either one.

A Constitutional Amendment is serious and should only be used on something that is cut and dried like the right to a trial by jury or a woman’s right to vote. Harassment is a gray area, like Larry Flynt arguing what the definition of pornography is.

What do you folks think?



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