From the first amendment center
Photographs as speech
No Supreme Court decisions directly address a photographer’s First Amendment rights. The rulings closest to that issue involve expressive speech and conduct.
“The First Amendment literally forbids the abridgment only of ‘speech,’ but we have long recognized that its protection does not end at the spoken or written word … we have acknowledged that conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.’
“In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Texas v. Johnson (1989)
Two-point test:: it pays to be an activist
The judge looked to a number of U.S. Supreme Court cases, including Hurley, and pointed out that the high court has said “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.”
Preska found that Porat could not satisfy either of these elements because “he effectively disclaim[ed] any communicative property of his photography as well as any intended audience by describing himself as a ‘photo hobbyist,’ and alleg[ed] that the photographs were only intended for ‘aesthetic and recreational’ purposes.” Porat v. Lincoln Towers Community Association. (2005)