Photography Restrictions Run Rampant
By Mickey H. Osterreicher
BUFFALO, NY (July 28, 2010) - Although the First Amendment has been under constant attack since its ratification, incidents occurring over the past few months might lead one to believe that the War on Terror is taking its toll on a mistaken enemy. In Houston, a homeowner filed a civil rights complaint because he was arrested for "illegal photography" after a taking pictures of a police sergeant who followed him into his own home. A student photographer at Ohio State University was handcuffed and charged with criminal trespass by university police after attempting to photograph two cows that were roaming the campus. School employees and police told him he was not allowed to take pictures of the incident, despite the fact that he was a student photojournalist working for the school paper and he was on public property.
In Miami two photojournalists were told by private security for the transit system and Miami-Dade police officers that they were not allowed to photograph in and around the metro stop. Police also barred the pair from entering the station although they had metro tickets and threatened them with arrest if they did not comply. Another similar incident occurred in Atlanta where a person was ordered off a train and off MARTA property by a transit employee for taking pictures. Almost as disturbing was a subsequent post by a MARTA customer service representative who justified the action as a result of “the 9/11 attack and the subway bombings in Spain and the UK.”
Illinois, Maryland and Massachusetts are just three states where police are using obscure wiretap laws to prosecute people for recording the activities of police officers on public streets and roadways. In Boston one man was arrested for “illegal electronic surveillance” after he recorded audio of police officers making a drug arrest. In Baltimore, several people face felony charges for recording their own arrests. All of these incidents happened in public.
There were numerous reports of government interference with press coverage of the Deepwater Horizon disaster in the Gulf of Mexico. A CBS camera was ordered away from a beach in South Pass, Louisiana by a boat of BP contractors with two Coast Guard officers on board. The crew was threatened with arrest by the Coast Guard, who said that they were just enforcing “BP’s rules.” A freelance photographer shooting for ProPublica was detained by Texas City, Texas police after taking photos of a BP refinery on the grounds that taking photographs that included the refinery “could threaten national security.” He was followed by a BP employee in a truck and then blocked by two police cars when he pulled into a gas station, where police asked to review his digital photographs and took down his personal information after demanding identification. In early July the Coast Guard issued a policy setting up a 65-foot “safety zone” around booms deployed along the gulf coast, restricting news coverage of the story. There have also been reports that the media have been told that they were not allowed to speak with any BP workers or contractors involved in the clean-up efforts.
While these incidents only create anecdotal evidence, they do seem to point to a shift in how free speech is viewed by both law enforcement and the public. In many cases police officers make up new laws. In other incidents the police and the public seem to truly believe that they are enforcing or articulating laws or unwritten policies that do not actually exist. Still other cases appear to be an abuse of discretion as authorities ignore well founded constitutional principles. It is therefore incumbent upon the legal community to directly address these cases as soon as possible.
In both the Atlanta and Miami incidents letters were sent to the appropriate authorities pointing out that their respective municipal rules and regulations did not prohibit non-commercial photography. While expressing an appreciation for safety concerns it is also important to point out that photography/videography by itself is not a dangerous or pernicious activity unless accompanied by other behavior giving rise to probable cause or reasonable suspicion that would merit further investigation. Equating photography with terrorism creates an atmosphere of initial distrust and unnecessary suspicion. Public photography/videography is a protected First Amendment right of free expression limited only by reasonable time, place and manner restrictions.
Additionally, it should pointed out that any limitation on permitted photography should be governed by the amount of disruption such activity causes, such as blocking access to walkways for extended periods of time or interference with operations or personnel. It should not be based upon a dislike of these activities by individuals or officers. It should also be recognized that when a person has finished taking photos/videos in a reasonable manner, without having done anything else, stopping that person for questioning may cause more of a disruption than the activity itself.
In an apparent reaction to such media complaints the Coast Guard modified its 65 foot safety zone policy. Approximately a week after implementing its rule retired U.S. Coast Guard Adm. Thad Allen announced, "I have put out a direction that the press are to have clear, unfettered access to this event, with two exceptions - if there is a safety or security concern." Although that statement leaves room for arbitrary and capricious interpretation and enforcement most believe it a step in the right direction and is an example of what constructive criticism can accomplish short of litigation.
Other examples of successful interventions were with the Metropolitan Transit Authority where the media opposed a proposed rule change that would have banned photography and videotaping in its subways and bus systems. Also with Amtrak which revised its photography guidelines and police general order regarding photography and more recently with the Toledo Police Department which made sweeping changes to its media policies as part of a settlement of a federal civil rights lawsuit brought by two photojournalists who were illegally arrested in 2005 while covering a Nazi demonstration.
While assaults on the First Amendment continue it also appears that a commonsense approach in individually redressing even the most egregious of these abridgements has yielded some positive results. Continuing vigilance against this uninformed attitude along with efforts to make the general public and law enforcement aware of the dangers that accompany such infringements will help protect these precious freedoms.
Mickey H. Osterreicher is the general counsel for the National Press Photographers Association (NPPA) and a member of the New York State Bar Association Media Law Committee. He has been a photojournalist for more than 35 years and drafted letters to the Miami-Dade Police, MARTA, and the USCG on behalf of the NPPA, as well the revised Amtrak Photography and Toledo Police Media Guidelines.
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