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Point and Shoot: Is It Legal to Take Pictures of Factory Farms?

As authorities in Florida try to make taking photos of farms illegal, James Reeves traces the law's Red Scare roots and offers some legal tips.

People get nervous when they don't know why you're taking a picture of something. Pointing a camera at the Statute of Liberty is understandable. Taking a photo of a barge or some pilings in the East River attracts authorities. This anxiety is not just a feature of cities. Speeding through Utah one evening, I saw the beautiful skeleton of a wrecked cement mixer on the horizon, backlit by the sun setting beneath the blank Salt Flats. I pulled onto the shoulder of the empty highway with my camera ready to flash. Two minutes later, a man in sunglasses in a black jeep with tinted windows was hollering at me, demanding my camera.

I still don't know where that jeep came from, but I remember how angry I got. Standing in the middle of the desert, my mind flashed on the dozens of times I've been harassed by security guards, soldiers, and concerned citizens for taking pictures. I remember feeling like a criminal while driving around ports taking pictures of the colorful stacks of shipping containers, nearly having my film confiscated by a supermarket manager, and being shooed out of several federal installations. Why can't I take pictures of things funded by my tax dollars? Indignation fades to a darker concern: If our infrastructure is so precarious that snapping a photo from across the street compromises national security, we're in trouble.

Cameras are everywhere these days. They're built into our computers and telephones, mounted on overhead poles and ATM machines, and we're always posing for satellites and Google. We expect to be recorded in the public realm, yet we're facing new laws that prohibit us from taking a photo on the subway platform or at the airport.

This paranoia may feel like a relatively recent feature of modern life, a logical extension of enthusiastic TSA body scans and border patrol checkpoints, but America has always been anxious about photography. In 1950, for example, the government passed a law that allowed the military to shoot you for taking a picture. Drafted in the heat of the Cold War, the McCarran Internal Security Act authorized the "use of deadly force" if a camera or recording device was pointed at the fenceline of a military installation.

Although portions of the McCarran Act were later repealed, its spirit lives on today, most notably in the recent crop of state statutes that make documenting a police officer a felony. A Chicago artist was recently busted for selling his paintings without a permit. He filmed the confrontation. The permit charge was dropped; today he faces five years in prison for recording the arresting officer.

This logic is now being extended to our food. In Florida, a series of videos and photos recently captured the horrible things that corporate farms do to the animals we eat. Most of us are vaguely aware of the claustrophobia and brutality, the genetically deformed creatures tipped over in tiny cages; these videos simply illustrate the filth and slaughter of mechanized farming in detail. Senator Jim Norman responded to these upsetting images with a logical proposal: Ban photography on farms. Senate Bill 1246 would prohibit "entering onto a farm and making any audio record, photograph, or video record at the farm without the owner's written consent."

Although it's true that employees at most private companies can't take pictures of the intellectual property of their employer, if any industry demands utter transparency, it ought to be the one that feeds us. And what is a farm? Where does it begin and end? S.R. 1246 defines "farm" as "any tract of land cultivated for the purpose of agricultural production, the raising and breeding of domestic animals, or the storage of a commodity." That's a lot of land.

A couple of basic legal principles for all photographers:

1. You can photograph anything you like from public property, unless the subject has a reasonable expectation of privacy (i.e. no zoom lenses).

2. You can also shoot whatever you like when you're on private property; provided there is no expectation of privacy (e.g. you're on a driveway or in a field near the interstate). Trespassing and invasion of privacy are two separate legal issues (for more on this, you should consult Bert Krages's Legal Handbook for Photographers).

I pointed this out to the man in black sunglasses, but he wasn't impressed. He kept yelling. I got back in my rental car and drove away, feeling like a criminal rather than a photographer drawn to industrial scenes. What was that man afraid of? Why can't we point our lenses at our public servants and the producers of our food? They should welcome our attention.

When the McCarran Security Act was first introduced in 1949, Truman tried to kill it. "In a free country," he said, "we punish men for the crimes they commit, but never for the opinions they have. And the reason this is so fundamental to freedom is not, as many suppose, that it protects the few unorthodox from suppression by the majority. To permit freedom of expression is primarily for the benefit of the majority because it protects criticism, and criticism leads to progress." His veto failed. The bill passed and it destroyed countless lives until it was slowly dismantled over the years as America recovered from the Red Scare.

Although frightening and wrongheaded, the authors of the McCarran Internal Security Act believed they were protecting us from a political threat and, under its most generous reading, from a nuclear war. What is the rationale for shielding farmers from public scrutiny?

James A. Reeves is a writer, designer, teacher, and partner at Civic Center, whose first book, The Road to Somewhere: An American Memoir, will be published by W. W. Norton in July 2011. He goes to law school in New Orleans and worries about the American landscape on his blog, Big American Night.

Photos: (1) courtesy the author; (2) via PETA.

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