Is SJSU trampling on professor's First Amendment rights?
Alleged: SJSU Prof being hindered from taking photo at a pro-Hamas protest. Image from Inside Higher Ed website
The only formal action SJSU took after what has been called an antisemitic melee on 2.19 was against—get this—a professor who tried to defend his ability to take photos of the rowdy crowd. While the incident is still being investigated, missing from local media coverage and SJSU admin's statements is an understanding that taking photos in public is constitutionally protected. And impeding that right may run afoul of the law, as various legal experts explain below.
{Editor's Note: The Inside Higher Ed website reported that SJSU professor Jonathan Roth has been put on leave because of a minor scuffle that occurred when Roth defended himself from a protester, who tried multiple times to physically impede Roth's ability to photograph the event.}
How taking photos and videos in a public place is a constitutionally protected right:
"Of course the criminal complaint or summons never states "illegal photography" because there is no such thing. Limiting the ability of someone to take photography in a public place is unconstitutional. The rule of thumb is if you are out in public, and you see something in public, you are allowed to photograph and record."
"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."
--ACLU, DC
Why it's important to allow photography during police or security action (as was the case at SJSU):
"Taking photographs and video of things that are plainly visible in public spaces is a constitutional right—and that includes transportation facilities, the outside of federal buildings, and police and other government officials carrying out their duties.
The right of citizens to record the police is a critical check and balance. It creates an independent record of what took place in a particular incident, one that is free from accusations of bias, lying, or faulty memory. It is no accident that some of the most high-profile cases of police misconduct have involved video and audio records."
--ACLU, DC
Impeding someone from taking a photo can be considered assault:
"{People} are permitted to use reasonable force in most jurisdictions to protect {themselves} and {their} property or to protect others and their property.
"He or anyone else has a right to take a photo of you unless you have a reasonable expectation of privacy - in a change room or bathroom for example - you do not have such an expectation in a classroom. The controller of the premises (the school) can impose whatever restrictions it wants on photography but if someone ignores their rules that’s a matter for internal discipline, not the law. In any event, it’s not grounds for assaulting the photographer."
Final thoughts:
Let's have a truce in the war on photography and set our sights on the real bad guys. Who, it seems, don't carry cameras anyway.
The whole Inside Higher Ed story can be read here.
Related:
National media covers SJSU antisemitic melee, crickets from local media
Perspectives: What does SJSU's response letter about pro-Hamas fray mean—and is it enough?
WSJ breaks down Stanford's fence-sitting response to antisemitic hate
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