"To achieve First Amendment protection, a plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed." Hurley v. Irish-American Gay, Lesbian & Bisexual Group (1995) For example, one is allowed to take photographs of circus animals to show others the just or unjust treatment of the animals. Overall, the "Speech" or "Speech Conduct" must be "communicative," otherwise it is not protected under the first amendment.
However, with understandable laws there also unfortunately comes gray areas that prove to be confusing, and sometimes questionable. Is it lawful to take pictures of a building? Is it lawful to record your own daughter's performance at a school function? Is it lawful to record police activity? To these questions comes the sticky answer: it depends. There has been much debate on what is allowable to photograph, record, and distribute. Since it seemingly must have a purpose to be allowed, the question arises: Why? .
Ram Z. Porat, while walking along a public street in New York in 2003, took pictures against a security guard's request of the Lincoln Towers. He told the security guard that the pictures were only for aesthetic and recreational use. The security guard issued him a ticket for trespassing, but believing that his rights had been unlawfully infringed, "Porat filed suit in federal district court arguing, among other things, that the guards and police officers "violated his First Amendment rights by issuing him an appearance ticket for trespass in retaliation for his exercise of conduct protected under the First Amendment" (Haynes). He lost the case, due to the fact that personal use of photographs are not protected under the first amendment. His interests, simply to look at his pictures later on in life, were not protected.
