Re: [Leica] Re: Taking Photos in Starbucks

[Bryan Caldwell <bcaldwell51@earthlink.net>]

On 1/29/02 9:56 AM, "Eric" <ericm@pobox.com> wrote:

> B.D.:
> 
>> I'm not a lawyer, but I play one on the LUG...
>> ...I don't believe that they have to show anyone squat - all they have to
>> say is 'you can't take photos here.' It is their store. It is private
>> property. You basically check your rights at the door. Unfortunately.
> 
> Actually, if a store is open to the public in the US, it isn't exactly
> private property any more.  Stores lose some rights by soliciting the public
> to come through their doors.
> 
> What rights those are and what rights you have to check at the door, I can't
> quote.  It's neither black nor white.  Lots of Zones 3 - 7.  :)
> 
> 
> Eric
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Although this is far from my specialty, I am a lawyer and perhaps I can shed
some light on the legalities here.

First, in the United States, taking a photograph has long been considered an
act of Constitutionally protected "speech." As with many other
Constitutionally protected rights, this doesn't mean that it is absolute.
But, case law dealing with other types of protected speech (labor picketing
and distribution of leaflets) has developed some fairly clear rules
governing the ability of a private citizen to exercise their right to free
speech on the private property of another. Or, if you want to look at it
from the other perspective, the right of a private property owner not to be
compelled to provide a forum for the speech of others. It is important to
remember that acceptable regulations of speech must, except in extremely
rare circumstances, be 'content neutral' - meaning that the message conveyed
is irrelevant and a regulation must apply equally to all points of view.

Original litigation arose in the context of the "company town," where an
employer owned and controlled the town in which the workers lived. The
rights of workers to demonstrate or organize were often prohibited by the
employer who claimed that he/she could not be forced to provide a forum for
the speech of others. In the "company town" context, the U.S. Supreme Court
disagreed. Then, in the 1960s, with the growth of enclosed shopping malls,
protestors and labor organizers began to seek admission to privately owned
malls based on the theory that they were the functional equivalent of the
company town. At first, the Court agreed. Then, in a subsequent case, the
Court narrowed their decision and held that the private owner of a shopping
mall could not prohibit the exercise of free speech if the subject of the
speech was related to mall's operation.

Finally, the Court seemingly changed (although its reasoning is not a
complete turnaround) its mind and held, in 1976, that the First Amendment
did not guarantee a right of access to privately owned shopping centers even
if the subject matter of the speech concerned the operation of the center
(remember, an acceptable regulation must be content neutral).

For the time being, this is the accepted rule concerning places of business
(at lease, retail businesses). There is no right of access by a private
citizen to exercise his or her free speech rights. (I point out that this
concerns 'retail businesses' because there are some privately owned setting
where this rule is highly questionable - migrant labor camps, for instance.

However, the above discussion concerns rights guaranteed under the "Federal"
Constitution. An individual state is free to grant broader rights under
their own state constitutions or laws than than those guaranteed federally.
In California, this is true of the matter at hand.

In 1980, the U.S. Supreme Court upheld a California judicial interpretation
of its own state constitution that allowed a right of access by private
citizens to a shopping mall to exercise free speech rights. However, a
subsequent recent California decision has limited this right of access to
multi-business shopping centers. Even in California, a single business may
prohibit the exercise of expressive activity that would be Constitutionally
protected on public property.

Of course, this is a very brief discussion of what is a very complex topic.
There are situations that may arise and arguments that could be made that
the courts have not addressed. Remember that the U.S judiciary only decides
real cases and controversies and will not address hypothetical issues. I
also would not be surprised if some of the other attorneys here might
present a slightly different summary. I don't claim to agree with the
current state of the law, but would be happy to discuss this off-list with
anyone who is interested or to provide specific case citations to those who
are interested in reading the decisions.

And "no," I will not represent anyone who gets in trouble for taking
pictures in Starbucks <g>.

Bryan Caldwell


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