Techies Apparently Deprived of Internet Access: Ignorant Tyrants Have no Understanding of, nor Respect for, the First Amendment (nor Anything Else).
So, these horrific techies have the audacity to shove their buses up our noses, and disgrace our City with their presumptuous self-righteousness, and clog our sidewalks with a hundred company pawns at a time. Their corporations have destroyed the depth, creativity, and heart of OUR San Francisco. And in the face of all that, they have the gall to threaten, manipulate, and coerce, in an attempt to stifle free press, art, creativity, and free expression.
Hey you a-holes, don’t you ever USE the Internet? They pack you into those luxury buses at our expense, so you can work every minute. I see all five of you on that huge bus made for 80. Here’s something new to surf when you have your feet up a-holes! You entitled jerkoffs have no respect, nor appreciation for the rights of others. It’s NOT about you, We don’t give a f-ck about your corporation,nor the swill you sell at our doorsteps, you disrespectful, egocentric wanton corporate clowns!
AS LONG AS YOU A-HOLES DESTROY OUR ABILITY TO LIVE PEACEABLY IN OUR OWN HOMES, YOUR ACTIONS WILL BE EXPOSED AND SHARED, AS PROVIDED BY THE FIRST AMENDMENT. BUILD PRIVATE TERMINALS OUTSIDE OUR NEIGHBORHOODS, USING ALTERNATIVE ENERGY SOURCES (INSTEAD OF SPEWING YOUR DEISEL INTO OUR WINDOWS 10 HOURS A DAY!), AND YOU’LL THEN BE ABLE TO CONTROL THINGS AS YOU DELUSIONAL BELIEVE YOU CAN NOW. YOU ALL SEEMED SO PROUD UNTIL YOU BECAME THE FOCUS!
HERE’S AN EDUCATION FOR YOU. YOU HAVE BEEN DISRESPECTFUL OF ME AND OUR NEIGHBORS, AND OUR CITY. YOU HAVE INSULTED ME FOR PEACEFULLY DEMONSTRATING, CREATING AND DOCUMENTING. YOU HAVE THREATENED ME PHYSICALLY SEVERAL TIMES, ALL ON CAMERA. YOU ARE DISGUSTING!
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Art is speech.
Freedom of Speech / Freedom of the Press
The most basic component of freedom of expression is the right of freedom of speech. The right to freedom of speech allows individuals to express themselves without government interference or regulation. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. Generally, a person cannot be held liable, either criminally or civilly for anything written or spoken about a person or topic, so long as it is truthful or based on an honest opinion, and such statements.
You see, courts have traditionally found value in the free flow of creative expression and informative news. If they were to limit these fundamental elements of modern human life, then they would be stifling the public good. Creative expression and the right to information are principles codified in the First Amendment, which offers all U.S. citizens the right to freedom of speech. As such, journalistic works – those that relate to “newsworthy events and matters of public concern,” are often afforded more leeway when it comes to rights of publicity. Similarly, fine artists, in photographing and documenting daily life, have been deemed to be engaged in a form of “artistic expression,” and therefore are encouraged to disseminate their photographs for consumption by the public. While what constitutes “artistic expression” can be subjective, in general, fine art photographers create without an intention of selling their work. Just because they eventually do doesn’t mean that the work isn’t creative expression.
Right to Privacy
Privacy is a right that many people think has much more weight that it does. The States grant privacy rights, codifying the laws in statutes that vary in scope from state to state. The boundaries of what constitutes a place of privacy have changed significantly over the years, although the most dramatic erosion of our privacy rights has occurred over the past 30 years. In general, individuals only have a right to privacy in places in where there is a reasonable expectation of privacy; those places that society reasonably expects to be private, such as a bathroom. Conversely, no Right to Privacy is expected in places that are exposed to the public. The rule allows photographers to shoot anything or anyone, which they can see from a public space or a private space for which they have permission and access, even if that subject of the photo is on a restricted private property. Artists can capture copyrighted buildings or art displayed in public without being subject to a copyright infringement lawsuit. The same holds true for shooting people, including law enforcement. The caveat is that the photographers or other artists must be able to capture the subject from a legal vantage point, without the use of special equipment not traditionally available to the public.
The rules loosely derive from laws related to the admissibility of evidence in criminal cases. For police to perform a search of someone’s private property, whether it is a car or home, the police must have probable cause obtained without infringing on someone’s privacy rights. Otherwise, the evidence gathered is due to an illegal search and, therefore, inadmissible. In one case, a man was growing marijuana in a greenhouse in his backyard. Police couldn’t see inside the greenhouse from the street, as the walls were somewhat opaque. Without seeing the plants, there was not enough probable cause to convince the court to issue a search warrant. However, the roof of the greenhouse had several broken panes, so the police used a helicopter and binoculars to see the plants in the greenhouse, which gave them the probable cause they needed to get a search warrant. Conversely, in Kyllo v. The United States, the police used an infrared thermal imaging device to scan a suspect’s home from the street. The scan showed that the roof over Kyllo’s garage was unusually hot, which indicated the presence of heat lamps for growing marijuana, and from that evidence, obtained a search warrant, finding the plants and arresting Kyllo. Kyllo sued the government claiming the search was illegal because the use of thermal imaging infringed on his privacy right. The Supreme Court agreed, finding the use of infrared scanning excessive, saying that “when . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.” Today, a decade later, infrared sensing devices are readily available to the public, and so their use may no longer be considered excessive.
What does that mean for Svenson? The court found that there is no expectation of privacy when in a room with large glass windows that can be seen from a building across the street. Anyone can see the family and the family knows this, so they cannot expect their actions to be private. So taking a photo of the Foster’s through their window is no different than taking their photo in a public space. The fact that Svenson used a telephoto lens is not extraordinary. Telephoto lenses, as well as telescopes and binoculars, are readily available. Sadly, to be assured privacy, one must close the curtains.
However, the fact that Svenson may be allowed to take a photo does not necessarily mean he is allowed to sell that photo because in some States, people have the right to the use of their own likeness and without express permission, for example in a model release, the images cannot be sold. Unfortunately, the Right of Publicity is different in each State and the New York rules are rather limiting.
Right of Publicity
To mitigate the limits on the Right to Privacy, many states have enacted Right of Publicity statutes, which extend the Right to Privacy in certain circumstances. In New York, the Right of Publicity statute makes it illegal to use someone’s name, portrait, picture, or voice, for advertising or trade purposes, without the person’s consent. This includes “any recognizable likeness, not just an actual photograph,” as well as an image that “conveys the essence and likeness of an individual,” even if the representation is not completely photo-realistic.
However, the New York courts have determined that there are several exceptions to the statutory rule; in “publications regarding newsworthy events and matters of public concern” and “artistic expression.” These exceptions are not uncommon. Along with our first amendment Freedom of Speech, the first amendment also provides for the Freedom of the Press. It is in the best interests of a free society to have an open and honest press, and so an exception is provided for the press in many areas of law such as copyright, wherein a news program can used copyrighted materials without permission if the copyright material is important to the story and no more is used than necessary. The same general principle carries over to the Right of Publicity. For example, a TV News program may show a photo of a person wanted for questioning in a criminal matter. If the news couldn’t post the person’s likeness, that would not only make it harder to convey the story properly but also inhibit the opportunity for a viewer to recognize the person and tell the police where he or she can be found.
The same is true for the Freedom of Speech or Expression. As a society, we don’t want to stifle artistic creativity, free speech or limit the open exchange of ideas, including artistic expression. As one New York court stated; “works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption. … [T]he public, as a whole, has [a] strong interest in the dissemination of images, aesthetic values, and symbols contained in the artwork. In our view, artistic expression in the form of artwork must therefore be given the same leeway extended to the press under the newsworthy and public concern exemption to the statutory tort of invasion of privacy. . . Since the newsworthy and public concern exemption has been applied to many types of literature, movies, and theater, it logically follows that it should also be applied equally to other modes of artistic expression. Indeed, works of art also convey ideas.” Additionally, since the images are works of art protected by the First Amendment, any advertising for the art exhibition promoting the artworks is also permitted. The court concluded that “under any reasonable view of the allegations, it cannot be inferred that plaintiffs’ images were used “for purpose of advertising” or “for purpose trade” within the meaning of the privacy statute.”
Some might say that artistic expression shouldn’t override the right to someone’s persona, however, remember that Freedom of Speech is a constitutional right, which overrides State laws. Art is protectable speech which is more important than the privacy or publicity right. Although Svenson’s action may seem egregious, his artistic expression wins.