The public has traditionally been granted the right to express themselves in public places, such as on city sidewalks and public parks. To protect public welfare, the government sometimes imposes restrictions on what people can do; however, such restrictions rarely affect photography.
The primary restrictions for activities on public sidewalks are prohibitions against obstructing free passage and access to properties adjoining the sidewalk. The ordinances and rules that apply to city parks typically prohibit things such as littering, unreasonable noise and vandalism.
Can Photography or Videotaping Activities be Prohibited?
Although normal photographic activities should not cause problems in public forum areas, extreme or suspicious behavior could expose a photographer to prosecution under disorderly conduct and loitering laws. Disorderly conduct laws prohibit people from engaging in any behavior that causes substantial inconvenience, annoyance or alarm through disruptive behavior. For example, taking a few photographs of someone in a public place will not constitute disorderly conduct even if the person is annoyed. Extreme behavior, such as repeatedly taking close-ups despite someone's objections or failing to obey police orders at a crime scene could constitute disorderly conduct.
Can Photography or Videotaping Activities be Considered Loitering?
Normal photography is unlikely to result in a prosecution for loitering, although in some circumstances you might be questioned by police about why you are hanging around a particular location. Since crimes such as prostitution, drug dealing, burglary and pedophilia are typically characterized by persons standing or wandering about with no apparent purpose, many municipalities have enacted ordinances prohibiting loitering. Courts have declared many of these ordinances unconstitutional because they fail to specifically describe the prohibited activity and thus give the police the discretion to arrest almost anyone on the streets.
Should Photographers be Concerned with Loitering Ordinances?
As a practical matter, photographers are unlikely to run into problems with loitering ordinances unless they are present in places at unusual times. However, there is nothing illegal about being present in public places at any time except when specific areas have been declared closed to the public, such as city parks after hours. Keep in mind that the enforcement of these ordinances is usually motivated by concerns over street crime, drug dealing and prostitution. A credible explanation for your presence (i.e., photography) should alleviate police concerns.
In many cases, the police will be responding to complaints filed by residents or workers concerned about suspicious activity. If you are in a place at unusual hours and see a police officer approaching, it is best to remain where you are since leaving the scene will make you look more suspicious. Once you have explained that you have a legitimate purpose in being present, most police officers will leave you alone. Should the police insist that you move on against your wishes, you run the risk of being arrested for loitering.
Questions for Your Attorney
- What if my equipment temporarily blocks a right of passage in a public place?
- Can I be charged with disorderly conduct for filming people against their wishes?
- Does the municipality where I live have valid anti-loitering ordinances?