Photography is Civil Right

Date: Mon, 26 Feb 2007 14:01:01 -0500
From: "Jason" <bodhisoma@gmail.com>
To: redline@mbta.com, mbassila@mbta.com
Subject: Photography on the MBTA

Greetings,

This morning a very strange thing happened to me. While travelling on the Red Line from Park St. to Harvard, an MBTA employee came out of the cab and this conversation took place:

Conductor: Do you have permission to do that?
Me: Huh?
Conductor: Do you have permission to take pictures?
Me: Huh?
Conductor: You can't take pictures unless you have a permit.
Me: Am I doing anything unsafe?
Conductor: No, but we've got a lot going on. Homeland security.
Me: That's great but photography in a public area is perfectly legal.
Conductor: OK, then I'll get someone to explain it to you.

He closed the door, the train continued and I exited at the Harvard stop. I should mention that the gentleman wasn't rude at all (albeit a tad bit overcaffeinated).

In this email, I want to be very clear on several points:

1. I have a First Amendment right -- Freedom of Expression -- to take photographs in any public place. Photography is well understood to be a mode of expression. The MBTA manages the subway, it does not own the subway.

2. I have a right under the Sixteenth Article of the Massachusetts Constitution to take photographs in any public place. The Sixteenth Article essentially protects Freedom of the Press. Since there is no test for who qualifies as "the press," we all do.

3. The Patriot Act contains no provisions barring photography on the subway or anything else that can be construed as such.

4. Because these rights are provided for by law, they are "civil rights." An attempt to prevent me from exercising these rights is therefore a violation of my civil rights.

5. If this attempt involves two or more people, it meets the legal definition of a conspiracy.

6. Searching your website for "photography," three links result. Two of them refer to a submission of a company profile and the third relates to filming, which I am not doing. Toward the bottom there is a notice that "any ... photography that depicts the MBTA must not portray the authority in a negative light." There appears to be no policy explicitly forbidding safe, non-commercial photography posted on your website. But as I've outlined above, such a bar would be unconstitutional and further, your employees appear to be carrying out this policy, whether written or not.

7. I have been told that there is a process for obtaining a photography permit. The MBTA is welcome to request that a permit be sought but obtaining a permit is not necessary for a citizen to exercise their civil rights (as enumerated above).

I would appreciate an official communication from the MBTA on what, precisely, their photography policy is. Hopefully it is "there is no policy barring safe, non-commercial photography and we will work to insure our employees are aware of this."

If this ISN'T the policy of the MBTA, let me know on what legal grounds the MBTA believes its policy trumps both Federal and State law and please put me in touch with your legal department.

Sincerely,
Jason Desjardins