NPPA Offers To Work With Amtrak To Resolve Photography Issues

 

By Donald R. Winslow
© 2009 News Photographer magazine

DURHAM, NC (January 23, 2009) – In early January the National Press Photographers Association's general legal counsel asked Amtrak to stop harassing photographers and to take "immediate steps" to remedy the railroad's "unconstitutional treatment of law-abiding photographers."
 
The railroad's response? "Amtrak denies any allegation that it [has] acted in an unconstitutional manner," the railroad's associate general counsel David J. Domzalski said this week in a letter to NPPA's general legal counsel Mickey H. Osterreicher.

NPPA's letter came after complaints by photographers of harassment and the arrests of several photographers who were confronted by Amtrak officials or the railways's police officers while they were lawfully taking pictures in public places.
 
"Photography is permitted in Amtrak's stations in spaces that are open to the public," Domzalski wrote on behalf of Amtrak and their police. "Photography is limited to situations where it does not interfere with passengers and crew ... there are considerations, including the safety of all passengers and crew that must be taken into account. As such, it is not an unreasonable time, place or manner limitation."
 
Domzalski also said Amtrak does restrict photography "in areas restricted to the public, such as right of ways and posted no trespassing areas. It is also limited on train platforms to ticket passengers who may do so briefly prior to boarding or departing from a train."

Amtrak's lawyer said that the railroad's photography policy states that the media should contact them in advance to "request contact and coordination. This is done more to cooperate with the media photographer in order to assure appropriate access and to provide notice to Amtrak employees of the authorized presence of the photographer."
 
“It is a courtesy for the media to contact Amtrak in advance," Osterreicher said, but the media does not need permission from them to take photographs in a public area. If you call and they say 'no', that's  a form of prior restraint and they don't have the right to do that."
 
Domzalski says that Amtrak police officers have been issued "specific guidelines" regarding the "rights of passengers, patrons, or the public-at-large to take photographs or video record in public space areas."
 
"These guidelines also state that Amtrak police can investigate activity of photographers that is reported or observed to be suspicious in nature."
 
"As the word gets around [of NPPA asking Amtrak to stop harassing photographers], we're hearing more and more from other groups and individual photographers who have faced similar situations with Amtrak over the years," Osterreicher said today. "That's why rather than trying to continue to confront Amtrak over the problem, we've written back [to Domzalski's response] and offered to work with them."
 
Osterreicher has responded to Domzalski's letter, noting that since there is no statute, rule, or regulation prohibiting photography per se, Amtrak's police almost always charge photographers with "trespassing" in a pattern of interference, harassment, and arrest.

"While you state that Amtrak’s policy permits photography in spaces that are open to the public and/or passengers it is apparent that has not been the overall experience of many photographers," Osterreicher said.
 
"It is one thing for Amtrak to exercise reasonable time, place or manner restrictions or to 'investigate activity of photographers that is reported or observed to be suspicious in nature.' It is quite another to abuse that discretion as a pretext to infringe on protected First Amendment rights in a public place or forum under the guise of safety and security," NPPA's lawyer wrote.

"And with regard to media coverage it is also one thing for Amtrak to 'request' that the media contact Amtrak to better coordinate and cooperate with the media 'in order to assure appropriate access and to provide notice to Amtrak employees of the authorized presence of the photographer.' It is quite another for Amtrak to deny access when contact is made beforehand. It should also be understood that during times of breaking or even general news coverage that it is not always possible for the media to make that request and the lack of such communication should not be used as a form of prior restraint."
 
"Rather than belabor the point of what happened in the matter involving the recent arrest of a photographer in Penn Station, NPPA would like to work with Amtrak to help develop reasonable and workable policies and practices to help avoid future incidents," Osterreicher said.
 
As of today, Amtrak has not responded to Osterreicher or NPPA.

 

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