Laws Regarding Photography

My name is Scott Wenger, I live in the United States, and I'm a photographer. I'm not a lawyer. If you have specific legal questions about photography, I suggest you consult with an attorney. However, there are some basic laws concerning photography (including case law) and I have provided some information and links below:

First Amendment to the U.S. Constitution

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.

Photography is a form of expression that is protected under the First Amendment. A lawyer told me, "If it's legal to view, it's legal to photograph." Your right to take photographs is protected under the First Amendment to the U.S. Constitution.

U.S. District Courts

1st Circuit:	Maine, Massachusetts, New Hampshire, Rhode Island, Puerto Rico
2nd Circuit:	Connecticut, New York, Vermont
3rd Circuit:	Delaware, New Jersey, Pennsylvania, and the Virgin Islands
4th Circuit:	Maryland, North Carolina, South Carolina, Virginia and West Virginia
5th Circuit:	Louisiana, Mississippi, Texas
6th Circuit:	Kentucky, Michigan, Ohio, Tennessee
7th Circuit:	Illinois, Indiana, Wisconsin
8th Circuit:	Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota
9th Circuit:	California, Oregon, Washington, Arizona, Nevada, Idaho, Montana, Alaska, Hawaii, and certain Pacific islands
10th Circuit:	Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming
11th Circuit:	Alabama, Florida, Georgia
DC Circuit:	Washington, D.C.

*As of 2019, case law regarding the First Amendment right to record the police is established in the 1st, 3rd, 5th, 7th, 9th, and 11th circuit.

Case Law

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)

Simon Glik, an attorney, was arrested by the Boston police while making a video recording of the police with his cell phone. He was charged with various crimes, including violation of a wiretapping statute. After the charges against him were dismissed, he filed a civil suit against the city of Boston and the Boston police department under 42 U.S.C., section 1983. The case went to the United States Court of Appeals for the First Circuit. The decision was that a private citizen has the right to record video and audio of public officials in a public place, and that the arrest of the citizen for a wiretapping violation violated the citizen's First and Fourth Amendment rights.

View the Glik decision (PDF)

Fields v. City of Philadelphia, 862 F.3d 353, 355-56 (3d Cir. 2017)

"Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held there is a First Amendment right to record police activity in public" and "we join this growing consensus."

Turner v. Driver, 848 F.3d 678, 689 (5th Cir. 2017)

"Filming the police contributes to the public's ability to hold the[m] accountable, ensure that [] officers are not abusing their power, and make informed decisions about police policy."

ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012)

The question in ACLU v. Alvarez was whether the First Amendment prevents Illinois prosecutors from enforcing the Illinois eavesdropping statute against people who openly record police officers performing their official duties in public. It was determined that "the act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording."

View the ACLU v. Alvarez decision (PDF)

Fordyce v. City of Seattle, 55 F.3d 436, (9th Cir. 1995)

Recording of police activity falls within the "First Amendment right to film matters of public interest."

Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000)

"[Individuals have] a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct."

Advertising

If you intend to use your photographs for advertising purposes, you must have a signed model release (also called a photo release.) For each recognizable person in the photograph, have them sign a photo release. You can visit the web page of the American Society of Media Photographers (ASMP) to see various release forms (both model and property release forms.) Here's a link to that web site:

asmp.org — Model & Property Release Forms

Candid Photography

I think candid photography is the most difficult type of photography. Before you try to take candid photos in public, you may be very interested in some information reprinted from the American Civil Liberties Union (ACLU), shown below:

Information from the ACLU

Taking photographs of things that are plainly visible from public spaces is a constitutional right — and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties. Unfortunately, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places, and harassing, detaining and arresting those who fail to comply.

Your rights as a photographer:

When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government and is important in a free society.
When you are on private property, the property owner may set rules about the taking of photographs. If you disobey the property owner's rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
Police officers may not confiscate or demand to view your digital photographs or video without a warrant. The Supreme Court has ruled that police may not search your cell phone when they arrest you, unless they get a warrant. Although the court did not specifically rule on whether law enforcement may search other electronic devices such as a standalone camera, the ACLU believes that the constitution broadly prevents warrantless searches of your digital data. It is possible that courts may approve the temporary warrantless seizure of a camera in certain extreme "exigent" circumstances such as where necessary to save a life, or where police have a reasonable, good-faith belief that doing so is necessary to prevent the destruction of evidence of a crime while they seek a warrant.
Police may not delete your photographs or video under any circumstances. Officers have faced felony charges of evidence tampering as well as obstruction and theft for taking a photographer's memory card.
Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations. Professional officers, however, realize that such operations are subject to public scrutiny, including by citizens photographing them.
Note that the right to photograph does not give you a right to break any other laws. For example, if you are trespassing to take photographs, you may still be charged with trespass.

If you are stopped or detained for taking photographs:

Always remain polite and never physically resist a police officer. If stopped for photography, the right question to ask is, "Am I free to go?" If the officer says no, then you are being detained, something that under the law an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.
If you are detained, politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment and does not constitute reasonable suspicion of criminal activity.

Full text of the ACLU article "Know Your Rights: Photographers":

ACLU_KNOW_YOUR_RIGHTS.PDF

Your rights as a photographer:

your_rights.pdf