Is a ban on professional photography in a public park in violation of the First Amendment?
According to Photographer Josephine Havlak and two of her clients, the small village of Twin Oaks should not be allowed to ban professional photography in the village’s only public park.
The ban was implemented after a county executive’s failed attempt to impose a $2,000 yearly permit fee, says Havlak.
The village clerk, however, blames photographers for this situation, in a case that could have a deep impact on the entire industry.
The current village ordinances prohibit commercial activity in the park, and while photographers are not the only ones affected by this rule, they do get a special mention in the park’s signs. “No commercial activity including commercial photographers” state the signs, leaving little room for doubt as for who is the main target of this ban.
Joining Havlak in the lawsuit are her friends and clients, William and Mary Hill, who want to have their portraits taken at the park.
Claiming it is unfair to put a stop to professional photography while amateurs and “mom-tographers” are free to do as they desire, the plaintiffs wish to be able to photograph, and be photographed, in the park without being prosecuted for doing so.
It is important to clarify that when Havlak refers to “mom-tographers” she doesn’t mean soccer moms taking snaps of their kids:
“they do exactly what I do and are my direct competitors but charge a whole lot less. I don’t know how they do it, but they do. I hear that you can hire someone for $200/hour who will meet you at a park and take pictures of your family for an hour. They give their clients a full set of high resolution files. Many of them are good at what they do and feel just as passionately about their business as I do.they do exactly what I do and are my direct competitors but charge a whole lot less. I don’t know how they do it, but they do. I hear that you can hire someone for $200/hour who will meet you at a park and take pictures of your family for an hour. They give their clients a full set of high resolution files. Many of them are good at what they do and feel just as passionately about their business as I do.”… they do exactly what I do and are my direct competitors but charge a whole lot less. I don’t know how they do it, but they do. I hear that you can hire someone for $200/hour who will meet you at a park and take pictures of your family for an hour. They give their clients a full set of high resolution files. Many of them are good at what they do and feel just as passionately about their business as I do”.
Havlak also explains why the portraits should be allowed:
“Parks are public spaces and by definition are open to the public. I am NOT a commercial photographer whose photographs are used for commercial purposes such as advertising. I am hired by families, and my photographs are for private use only. My photographs are for the private enjoyment of my clients who hire me to do a better job of preserving the memories of their families”.
Havlak emphasizes that banning professional photography in the park will not only be unfair to photographers, but also to the clients who are basically “the public”.
“Those parks are public places, and if you want to have a memory of your family created in those places, why shouldn’t you?”
Regarding the impact on photographers specifically she adds:
“This kind of assault on photographers is going on around the country.
I can see Twin Oaks not wanting busloads of people coming in there, but for portraits? By and large, we’re artists. It’s not something that hurts these parks in any way.
Up until the last five years or so, portrait photographers were never asked to pay fees to parks for this reason. Two years ago Charley Dooley [previous County Executive of St. Louis County, Missouri] proposed charging portrait and wedding photographers $2,000 per year as a permitting fee to take photographs in ANY and ALL of the St. Louis County Parks. In addition, they would also pay a per time charge for each client they photographed in any of the County parks. There was an outcry, and this idea was dropped.
This is a classic example of government regulations making it harder and harder for small business to operate. I hate to file a lawsuit, but I feel that it is necessary in order to preserve the ability of all portrait and wedding photographers to make a living for themselves while at the same time preserving the memories of their grateful clients”.
As for the violation of the First Amendments rights Havlak said, “Public parks are the quintessential venue for free speech and expression. Parks are places where free speech is almost never limited which is why parks are used for protests, rallies, etc”.
The lawsuit was filed against the village of Twin Oaks, the village clerk Kathy Runge and St. Louis County Police Chief Jon Belmar.
The only response I have come across so far was by Runge, who stood beside the current ordinances, stating that numerous residents have complained the park teems at times with portrait photographers and their clients:
“Photographers tend to come into the park and take over. It’s become quite a crisis. We’ve never written a ticket to anybody. We just make them aware of our ordinances and ask them to leave”.
The general penalty for violating the village’s ordinances is a fine of up to $1,000 or up to 90 days in the village or county jail, so it is understandable that Havlak and the Hill’s don’t want to risk being the first to be cited.
Havlak, however, disagreed with the clerk’s statement:
“In my experience professional photographers are MUCH more careful to use locations carefully and follow the rules – after all, we want to be welcome each time we come back with our cameras. I would never ask a stranger to move so that I could use a location for a portrait. How rude!! It is usually Uncle George who stomps on the flowers in his zeal to capture that moment at the wedding, not us pros.In my experience professional photographers are MUCH more careful to use locations carefully and follow the rules – after all, we want to be welcome each time we come back with our cameras. I would never ask a stranger to move so that I could use a location for a portrait. How rude!! It is usually Uncle George who stomps on the flowers in his zeal to capture that moment at the wedding, not us pros”.
The Courthouse News Service has summed up the plaintiffs’ motion after reviewing the suit:
“The plaintiffs seek declaratory judgment that the ordinances are unconstitutional, and want the defendants enjoined from enforcing them.
They say the city law that bans commercial activity is unconstitutional because it is not content-neutral, not necessary and not narrowly drawn.
Nor, the plaintiffs say, does the village have a compelling interest in banning People from hiring commercial photographers in the park”.
In an email to me Halvak said that all photographers need to take a stand, and that she filed the lawsuit for the greater good, as well as herself:
“I am filing this lawsuit on behalf of all portrait and wedding photographers in the United States. Two years ago our county executive, Charley Dooley, tried to shut us all down by imposing a $2,000 per year permitting fee plus a per time usage fee of several hundred dollars. Fortunately that idea was shut down. Since then I have read many blog posts about this happening around the country, and when I saw this sign, I decided to take a stand”.
Honestly, I’m having a hard time completely agreeing with either side.
I’m a firm believer that people should generally be allowed to do whatever they want as long as it does not negatively affect other people. I feel the same about photographers in public spaces.
That being said, I can understand how a photo shoot, let alone a few, can quickly become an unpleasant experience for the other visitors of the village’s small (and only) park.
I guess what tips the scales as far as I’m concerned is that no attempt was made to stop amateur portrait sessions and that the county wished to make money off the professional photographers.
I have no knowledge regarding other photographers in the area, but Havlak states that she works with natural light when possible. I think this makes it safe to assume that she does not carry a lot more gear to a portrait shoot than an advanced amateur would, so it’s not as if she’s clogging up the park with a million light stands, flashes, cables etc. I also agree with her assessment that a pro will usually be more careful and aware of his surroundings than an excited amateur.
As for the attempt to monetize off of the professional photographers working in the park, I find this to be the most annoying. Either photographers prevent visitors from enjoying the park or they don’t. Photographers paying the county thousands of Dollars a year will not make visitors’ time at the park any more pleasant. You’ll notice that photographers weren’t blamed for causing actual damages to the park, so it’s not as if the money was required for additional upkeep and maintenance.
If photo shoots have become an ongoing problem in the park, I completely agree that a solution should be found. That being said, I don’t believe there should be any differentiation between professionals and amateurs and the solution should address the problem directly.
A possible fix could be to allow photo shoots only during weekdays, or maybe limit the amount of simultaneous photo shoots.
Plain and simple, money should not be part of the decision to allow or ban non-commercial photography in a public space such as a village park. Perhaps nominal fees to cover secretarial costs or what have you, but definitely nothing near the amounts that have been mentioned.
Now, although I’m confident that a fair solution can be found to the overcrowding problem of the small park of Twin Oaks, we must remember that this lawsuit is about a lot more than a park in a village with a population of 394.
It won’t be immediate but the consequences of the court’s ruling, either good or bad, could possibly affect legislation in your area down the line.