Protests, photography and the First Amendment

Photo by YouTube: Mark Schierbecker

A much-shared video from the recent student protests at the University of Missouri shows a professor attempting to bar a freelance photographer from taking pictures. Near a temporary tent city on campus bordered by signs warning that the media was not allowed, Melissa Click can be seen in a video shooing away the videographer and calling for “muscle” to remove the media from the students’ “safe space.” Click has since apologized and resigned her courtesy appointment with Missouri's School of Journalism, though she remains employed with the School of Communications.

This is not the first time protesters have clashed with journalists. Protests can be fraught with tension, and in the heat of the moment amid a swarm of local and national media (to say nothing of citizens with smartphone cameras), the zeal for getting one’s message out can get in the way of clear thinking. But the First Amendment that allows protesters to shout their demands also allows cameras to capture the moment.

So what does the law say? In Texas, at least, it is pretty clear: If you’re outside doing something in public, other people can take your picture. The U.S. Constitution protects the freedom of expression through the First Amendment. Additionally, the Texas Constitution protects the “liberty to speak, write or publish [one’s] opinions on any subject ... and no law shall ever be passed curtailing the liberty of speech or of the press.”

These are powerful protections. Photojournalists and the media at large use these rights to document and disseminate news.

Texas has recognized a common-law right of privacy since 1973, meaning that among courts, it is accepted law even though it is not written into a statute. In Texas, an invasion of privacy must be an intentional intrusion into one’s “solitude, seclusion, or private affairs” and “highly offensive to a reasonable person.” This means that, unsurprisingly, when one is in a public space, one has left solitude and seclusion behind.

Vaughn v. Drennon, a 2006 appeals case out of Tyler, is illustrative of how this applies. The plaintiff brought a claim against a man who watched her with binoculars in several instances, sometimes while she was inside her home. However, the court pointed out that "[o]ne cannot expect to be entitled to seclusion when standing directly in front of a large window with the blinds open or while outside."

As the U.S. Supreme Court stated in NAACP v. Claiborne Hardware Co., “Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.” A 1991 appeals case in Corpus Christi upheld a newspaper’s use of a photograph from a high school soccer game where one of the player’s genitalia was exposed mid-stride. Such publication was protected by the Texas Constitution because it accurately depicted a public, newsworthy event (even though the newspaper could have used other photographs from the game).

Another Texas court in 2014 specified photography as protected expression. Taking a picture is analogous to “applying pen to paper to create a writing or applying brush to canvas to create a painting.” This helps equate journalism with protester expression. Everyone on both sides of the picket line has the freedom to express themselves with mouths and cameras alike.

Apart from the common law, there are statutes that protect against photographing certain subjects. For example, Section 21.15 of the Texas Penal Code prohibits photographing someone in a bathroom or changing room or photographing their “intimate area[s].” The subject must not consent, and the photographer must intend to invade the subject’s privacy. However, the caveat is that “intimate area” photography is allowed when such sensitive places are “subject to public view.” Let your imagination run wild.

The moral of the story is this: Be careful what you do in public. Student protests have shown themselves to be powerful forces for change, but if we want to live in a place where we can build a tent city to force out unwanted school administrators, we must also accept that our picture might end up on the front page of a newspaper.

Dean Galaro

Law student, Southern Methodist University

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