Trespass the Eyes?

I’ve been watching a few too many YouTube videos. I’ve been struck by how often a narrative is used to justify behaviors. It’s also as if their has been a secret script passed around. Everyone has read the script, and most have memorized the script, so in actor’s terms they are “off book”.

It doesn’t mean that they have analyzed the words and their meaning, it just means they get to say it with conviction. For example I’ve watched a few “first amendment audits”. This is where people take their video cameras out in the public, and film what they can see. It stems from a Supreme Court ruling that the police cannot trespass the eyes. You can keep people off private property but you can’t forbid them from looking at private property. The point being that if you can see it, then you can take a video or a photograph of it. If you don’t like it, build a fence.

This was a huge decision because many people have strong opinions about privacy. Personal privacy and corporate privacy. The Supreme Court decision was based on a simple premise, if you were standing on public property, or in an area open to the public, then everything that you see is available to be photographed. There is no expectation of privacy in public, with a few minor exceptions.

There can be areas that are restricted, but they must be clearly marked. Some rooms in public buildings have restricted access. Some outside areas of public facilities are also restricted, but they must also have clear signage.

All private businesses that are open to the public have the right to ask you to leave or be trespassed. To be trespassed you must be warned to leave, if you don’t leave, or return, then the police can be called. When the police come they must warn you to leave as well, then if you don’t leave you can be trespassed and arrested. All this interaction can be filmed.

There is one rarely understood expectation of privacy in public. Speaking on a cell phone is not protected. Speaking on a pay phone, or a land line phone is fully protected. In the old days it was obvious, because you made the call from your house or business. Out in the public you called from a “phone booth”. Not only did you have the expectation of privacy, but you could change into a super hero costume. Later, pay phones would have these little “sound wings” on either side. Yes, they did cut down on external noise, but they also showed that what you were saying is private. If you take photos or video of people speaking on pay phones, then you are breaking the law.

Interestingly, I haven’t seen a pay phone in public for years. Everyone is talking on cell phones, and there is no expectation of privacy for them. You are using public bandwidth for transmission.

Back to the topic of “first amendment audits.”

There are literally hundreds of individuals that want to “re-educate the public, and public officials of this new ruling. Some of these photographers are pleasant people. Some of these are really obnoxious. All of them are legally in the right.

On the one side the secret script is peppered with the same phrases, “Am I being detained?”, “Is being suspicious a felony or a misdemeanor?”, “If I am free to go, then I am free to stay!” “I am not responsible for you feeling uncomfortable!”, “Your uncomfort does not trump my Constitutional rights!”

Perhaps the script is not so secret, because if you are going to perform these audits, then you will try to prepare yourself. You will watch YouTube videos, and say the same things in the same way. Nerves come into play so it may come across differently.

The curious narrative comes from the other side. It comes from the security guard, the official, the police, and sometimes the public. “You have to understand, in this day and age…”. Wow, this was a real shock because it is clear that while it is a script, it comes out so naturally. Somebody put those words together for the first time, and it spread like a virus.

It gives the opinion that the user has done the research, analyzed the facts, and has logically come to a rational conclusion. No wonder it is used so much. “In this day and age…”. Sometimes the phrase is punctuated with the additional phrase “… after 9-11”.

The problem is that it doesn’t take in the legal right. It may reference a policy, but policy is not law. It also may point to a moral issue, but you can’t legislate morality.

This is a built in conflict. Conflict is not necessarily a bad thing, but in this case one side is armed with a gun, and the other side is armed with a camera.

So words are very important, the script that we use can determine how we act out the drama.

About johndiestler

Retired community college professor of graphic design, multimedia and photography, and chair of the fine arts and media department.
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