Recording things is generally interpreted as a form of speech. For example, recording police officers in public is speech. If the government can ban private parties from recording people's faces in public, the same could be done to prevent recording the police.
>Recording things is generally interpreted as a form of speech.
Then make it not so, we aren't forced to live with the status quo for eternity.
The law wouldn't be banning people recording faces. It would be much more specific: corporations can't record peoples faces at a mass scale to log them away and sell the data for a profit. If there's any edge cases to this, then let the courts handle it. We let the courts sort out grey areas already, that's their job.
Commercial speech is substantially less protected under First Amendment case law. You can't prohibit random individuals from declaring themselves a citizen journalist and recording people, but I think it would be entirely possible to pass a law saying private companies may not assemble facial recognition databases for sale to third parties.
They don't need to sell the database, just the video that builds the database. Or give it away for free and magically number go up in some bank account in Cyprus or Hong Kong.
Resolving this pathological impasse is straightforward - differentiate between personal activity and commercial activity. Individuals recording the police, other people happenstance, or even spending a considerable amount of their personal time compiling a self-administered facial recognition database of people - fine. Businesses (or really, entire industries) creating surveillance databases that would make a Stasi agent blush, likely by paying the salaries of many people to do this, and likely selling [access to] the databases to pay for it all - not fine. Societally, we've basically been hoodwinked with this temporarily embarassed millionaires fallacy - scale itself creates logical contradictions of our rights and we need to attack this head on.
It seems like an impasse caused by the first amendment, which does not distinguish between "personal" and "commercial" activities. I suppose there could be another amendment to add in these categories, but the freedom of the (commercial) press seems to fall under your "commercial activity" category? I suppose the government could license the commercial press, but that seems problematic, as it's what many totalitarian regimes do to suppress speech, and is exactly what the first amendment was meant to forestall.
On a slightly different note, why is the impasse "pathological"? Are you just throwing in a pejorative term?
The jurisprudence of the first amendment already makes many distinctions that are not there in the text of the amendment itself. This is inevitable - rights conflict with other rights and even with the same right as exercised by someone else.
> why is the impasse "pathological"? Are you just throwing in a pejorative term?
The current jurisprudence is a pathlogical (https://en.wikipedia.org/wiki/Corner_case) interpretation that clamps the solution space to maximal commercial/corporate rights at the expense of individual rights.
The example of the press is actually quite poignant. The current legal regime neuters the free speech rights of most of the press. People can be fired for writing articles saying things their employer does not want to be said. They can even be fired for saying things in their own personal time that their employer does not want to be said! The end result is greatly diminished rights for the individuals making up the press, in order to support greatly increased rights for the controlling owners of the press.
I don't see how you can differentiate between humans and corporations. They are both fundamentally the same. They are born... and oh wait, yeah. But still under the 14th ammendment's equal protection clause the Supreme court determined they were in 1886 (some argue 1819).
Maybe we shouldn't treat corporate speech the same as human speech under the 1st amendment, but that would allow regulation of corporations giving money to political organizations? Ok, well that's beyond the pale. That's obviously originally the founders intent in writing the bill of rights. I'm sure it's in the Federalist Papers somewhere.
We treat corporate speech as an extension of human speech because corporations are made up of humans, and there is no way of abridging the speech of corporations without also abridging the speech of the humans within that corporation.
Also, abridging corporate speech creates a precedent for abridging the speech of all human collective entities like religions, political parties, advocacy groups and the press, because there is no particular reason why corporations as an abstract entity created by humans to express collective human will should be unique in this regard.
You can't simply nullify rights when people exercise them in aggregate. That isn't how free societies are supposed to work, and it's too easy to undermine.
> there is no way of abridging the speech of corporations without also abridging the speech of the humans within that corporation
Sure there is. If corporations (/LLCs) were prohibited from directing their humans to say specific things as part of their employment, those humans can still say whatever they want on their own time.
> Also, abridging corporate speech creates a precedent for abridging the speech of all human collective entities
It's disingenuous to pretend that a corporation (/LLC) is just some group of people. Rather it's an entity that has gone out of its way to obtain a government created liability shield. Conditioning that grant on following extra regulations aimed at mitigating the harm caused by the extreme scale fostered by the limited liability makes perfect sense.
> corporations as an abstract entity created by humans to express collective human will
Wut? The corporate mechanic is that of directing humans in a top-down fashion. The only people thinking corporations represent "collective human will" are the ownership and managerial classes who either are the people directing the corporation top-down, or at least have to repeat enough of the corporate kool-aid to get promoted. The majority of people view them as the least-worst option to receive a paycheck and often see their own wills suppressed - even though respecting that distributed intelligence would often help the corporation (ie "shit rolls downhill").
How so?
Preventing facial recognition misuse (or use even). How is that impinging on the freedoms guaranteed in the First Ammendment?