There seems to be a lot of confusion about whether or not people can be prevented from taking pictures or shooting video in public. Just what is the law around taking pictures in public places?

The rights of photographers under the Constitution are expressed in sparklingly clear language in a legal memorandum on the "Rights of Journalists on Public Streets" which is available on the website of the National Press Photographers Association. I will now quote liberally from this very helpful document.

In general, the right to take photographs on the street is the same for members of the public as it is for journalists. So, if you're a member of the public, rather than a journalist, most of this applies to you too.

Although not unlimited, the media [and the public] enjoys a broad right of access under the First Amendment to photograph in public places such as streets and sidewalks. These rights are rooted in the First Amendment's strong protection of speech within "public forums." A "public forum" refers to a public place historically associated with free expression. The most commonly recognized examples include streets, sidewalks and parks. Within these areas, the government's ability to limit the public's speech is extremely limited.
[my emphasis]

Great. So taking photographs on the street is a constitutionally-protected activity. This means that the government is not supposed to restrict your right to photograph or videotape in public places, with very few exceptions.

But surely, the laws must have been changed after September 11th to reflect the new reality of the Global War on Terror (GWOT)? According to the legal memo, from the Washington, D.C.-based firm Covington & Burling:

[T]he case law does not reflect any narrowing of media rights within public forums in the name of national security. Moreover, no specific post-September 11 federal law grants the government any additional rights to restrict visual newsgathering, photojournalism or photography generally.
[my emphasis]

The memo does point out that a "public safety" exception exists for certain First Amendment activity. For example, a photographer may be ordered off a public sidewalk to maintain traffic flow and the like. But, "[C]ourts have found that the government cannot restrict protected First Amendment activity by merely invoking 'public safety' without any supporting evidence." That means the police must have a solid, factual basis for telling you to move on.

In a future post I'll look at what can happen when you actually exercise your First Amendment right to take pictures on the street in New York City.