This is an important legal question, since “speech” is generally protected under the First Amendment, while “conduct” can be prohibited and punished. At this year’s Loyola constitutional law colloquium in Chicago, professor Alan K. Chen explained why digital photographs and videos should be classified as speech acts under the First Amendment. (See his forthcoming paper “Free Speech and Democracy in the Video Age,” co-authored with Justin Marceau.) Given the ubiquity of digital photography and videos in our daily lives (think of all the police brutality videos and undercover videos of abortion “doctors” in the news lately), we consider this paper the most important one of the entire colloquium. By the way, if courts were to define digital photographs and videos as speech, wouldn’t corporations try to assert a right to privacy (the “Citizens United gambit”) in order to trump the speech rights of the public and of their employees?
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