Seth F. Kreimer

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As digital image technology proliferates in camera phones, iPhones, and PDAs, almost any image we observe can be costlessly recorded, freely reproduced and instantly transmitted. We live, relate, work, and decide in an environment in which pervasive image capture from life is routine. During the last half decade, captured images have come to underpin crucial elements of ongoing private and public discourse; digital image capture has become a ubiquitous adjunct to memory and a pervasively accepted mode of connection and correspondence. Digitally captured images precipitate conflicts between government authority and free expression. From efforts to suppress cell phone videos of official abuse or private malfeasance to prosecutions of “sexting,” the proliferation of digital image technology will require legal decision makers to come to grips with the First Amendment status of pervasive image capture. This Article commences the task. I begin by parsing the technological trends that have set the stage for pervasive image capture as a social practice, and proceed to sketch the emerging ecology of visual memory and discourse. I then canvass legal developments that threaten to shadow the promise of the new medium, and their proper analysis under the First Amendment. I argue against the claims of earlier legal analysts that the process of recording images is unprotected action; in contemporary social practice, image capture is part of a protected medium of expression. I close with an initial account of the proper scope of First Amendment shelter for the promise of pervasive image capture.

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