Thus, it seems problematic to insist, as some lower courts have, that photography conducted for "recreational and aesthetic" purposes lacks the First Amendment protection that would almost certainly prevent government from censoring a professional photographer, filmmaker, or photojournalist. (199) The courts that have reached such a conclusion did so on the ground that purely recreational photography is not inherently expressive, and thus only counts as "speech" when there is additional evidence that the picture-taker has a communicative purpose. In Porat v. Lincoln Towers Community Association, a federal district court found that the First Amendment did not protect digital pictures taken of a building complex by a "photo hobbyist" because the photographer could not demonstrate he had an "intent to communicate a message to an audience." (200) In Larsen v. Fort Wayne Police Department, another federal district court likewise found that a father trying to videotape his daughter's choir performance at a public school was not engaged in First Amendment speech because he was videotaping not to communicate about the performance but rather only for "personal archival purposes, that is, 'for family documentation of [his daughter's] childhood.'" (201) This logic has two serious flaws. One is that even "recreational" or "personal" photo-taking typically results in some sharing of images: dedicated photo hobbyists rarely keep their work entirely from view. They post photos they capture on websites such as Shutterfly or Picasa, or, at the very least, show them to friends and colleagues. Parents who document their children's activities likewise typically do so intending to share their videos or photos with their children and other family members. Though they might not share close to all of the photos they take, this does not distinguish them from photojournalists who might take tens or hundreds of photos intending to use only one of them. Moreover, even when an individual takes photographs or videos only for his own benefit, this does not make his photography or videography any less expressive than the written expression in a private journal (which would likely be staunchly protected by the First Amendment against government restriction or punishment). (202)
A second difficulty in distinguishing protected photography from unprotected surveillance is that if that distinction cannot be based on attention to artistic detail, then there are similar problems in basing it upon the capturing person's goals or objectives. Photography is often as much about seeing and learning about aspects of the world that were previously invisible as it is about giving expression to a message, feeling, or story. Indeed, for some of this seeing and learning about new things, people may not only take many photos or videos with drones, smartphones, and wearable cameras (such as the GoPro cameras one can wear on a helmet or mount on bicycle handlebars)--they may use automated image capture, perhaps having a wearable camera continuously film the action unfolding in front of them. (203) Such automated image capture seems very similar to image capture taken from a street lamp or an overhead drone. Where then, precisely, would courts draw the line between photographic activity that is entitled to First Amendment protection and nonphotographic activity that is not?
In his detailed argument for giving all such image capture First Amendment protection, Seth Kreimer argues that any such line is constitutionally irrelevant. To Kreimer, even "ambient image capture"--not only "premeditated image capture"--should count as part of the conventional photographic activity firmly protected by the Free Speech Clause. (204) This argument has power, but seems to cut against the strong intuition that use of video for surveillance has less in common with photography than with nonspeech information gathering, such as electronic eavesdropping or location tracking.
As if that were not trouble enough, there is a second problem with First Amendment jurisprudence that limits constitutional protection for drone- or other image-based capture to capture that has some artistic or expressive quality: the First Amendment value of images often lies elsewhere. Consider again Alvarez and other cases that have constitutionally shielded individuals who use their cell phones to record police. (205) What courts stress about these cell phone videos in protecting them is not that they are artistically created, or otherwise expressive of the recorders' distinctive views, feelings, or perspectives. What matters most for courts is that (1) the recorder was creating a video to generate and share a visual record of certain events, and (2) these events have public significance. On this account, the visual information that a camera captures about the police encounter itself has First Amendment value--and does so whether or not the camera-operator intended to engage in artistic expression. In fact, even footage of a police officer taken by an automated camera mounted on someone's dashboard, or a surveillance camera in someone's yard, seems to qualify for the right to record protection extended by Alvarez.
This is in part because, as Jane Bambauer has argued, capturing and sharing video in order to communicate the facts it records (for example, that a police officer hit a person) is functionally similar to recording and sharing the same information with notes, or in some other way. (206) Because courts would almost certainly extend First Amendment protection to a journalist's taking and sharing of notes, or a person's recounting of an event fixed in his memory, why not also extend protection to a person who records the same event with a camera? Could the First Amendment really prefer the less accurate recollection? In the Fourth Amendment context, the Supreme Court rejected a restriction on recording by undercover agents on much of these grounds. (207) Thus, there is a problem with trying to delineate, and rely heavily upon, a constitutionally significant line between photography and other forms of image capture. (208)
But even if a distinction between photographic and nonphotographic image capture cannot provide the key to what does and does not count as First Amendment speech, it may still have First Amendment importance. As noted before, human beings engage in countless activities to collect and learn from evidence about the world. They do so not merely by using cameras to capture light, but also by collecting and applying forensic science to physical evidence. Not all of this can conceivably count as First Amendment "speech," even if it ultimately sheds light on matters of public importance. So the Constitution leaves the government largely free to regulate such information-gathering (subject only to rational basis review), as long as it avoids doing so in a way that is aimed at suppressing speech or preventing audiences from hearing the message (or learning the facts) such speech conveys. For example, surreptitious audio recording may not count as "speech" or other First Amendment activity. But if Congress passes a law restricting such recording only when it targets government officials, and only to prevent the public from gaining a more accurate picture of its government, the restriction may nonetheless raise First Amendment alarm bells. When, on the other hand, the government restricts such audio recording in an evenhanded, content-neutral manner, that restriction would not trigger the First Amendment at all. A similar principle might govern most drone image capture.
When drone image capture is more than simple image capture, though--when it is photography, videography, or other artistic expression--even some evenhanded and neutral regulation may run afoul of free speech law. The government may not evenhandedly bar the distribution of pamphlets on streets, even to serve legitimate government ends such as preventing litter. (209) A similar evenhanded, content-neutral bar on photography or videography thus may be unconstitutional. In other words, when image capture occurs as a form of artistic expression, restriction of it might censor or damage speech, even if causing such damage is not the government's aim. And First Amendment protection for photography and filmmaking is so firmly established that the government certainly runs up against it even when targeting only commercial filmmaking and photography. (210) After all, free speech law does not permit the government to confine writers only to recreational writing by banning its commercial exercise unless they receive a license. (211) Similarly, the government may not prevent photographers and filmmakers from making their art the basis of professional, or profit-seeking, activity. (212) It is thus unlikely that the FAA may, long-term, constitutionally deny photographers or filmmakers the right to take aerial pictures as soon as they do so as part of "a commercial operation," even if commercial activity may constitutionally be subjected to heavier restriction. (213)
Who Is Recording: Journalists or Others
A second candidate for limiting the right to record is a principle that vigorously protects drone journalism but not drone surveillance or spying. If there is a First Amendment right to record from the skies, perhaps it belongs not to everyone but only to reporters. In other words, the right might not be a component of the First Amendment's "freedom of speech" guarantee, but rather of the liberty it guarantees for "the press." (214)
This proposed limit might solve the conundrum encountered above, when it seemingly became impossible to protect necessary drone image capture (including a civilian capturing police brutality without artistic concern) without thereby constitutionally entrenching all surveillance. (215) A narrower press-based right to record from the air might answer this concern. This solution would provide some...