PHOTOGRAPHY & THE LAW: Access and Interference
Posted by Mickey H. Osterreicher — 13 May 2012
In January of this year I wrote my first blog talking about the War on Photography and how there has always been tension between the press and government regarding news coverage of matters of public interest. Given the events of the last few months I think it is not only important to update everyone on recent occurrences but also critical that photographers know their rights in these situations.
Photographers continue to be interfered with and arrested for doing nothing more than taking pictures in public. Of course the criminal complaint or summons never states "illegal photography" because there is no such thing. Instead charges are for disorderly conduct or obstruction of governmental administration. A New York City police officer recently charged a photographer for "failure to comply with a police officer," when he alleged failed to move on a public street where other members of the public were watching firemen respond to a fire at Macy's department store.
NYPD by Kristin Michel
What was even more troubling than a law enforcement officer limiting the access of someone taking photographs while permitting the general public to observe was that the charge is a violation of Section 1-03(c)(1) of the Parks and the issuance of such a summons runs contrary to the language found in the NYPD Patrol Guide and recently issued FINEST message from Commissioner Kelly that directs members of the department "to cooperate with media representatives by not interfering or allowing others to interfere with media personnel acting in their news gathering capacity . . . and assist the media representative and provide safe access to the scene, if possible."
Another disturbing case involves a Temple University photojournalism student who was arrested by Philadelphia police near his house when he attempted to take photographs for a nighttime school assignment. It seems the officers believed that he did not have the right to photograph them performing a traffic stop on a city street. The student was charged with a number of misdemeanors including obstruction of governmental administration, disorderly conduct and resisting arrest, even though he stayed a respectful distance away.
Police Line by Seth Melnick
The rule of thumb is if you are out in public, and you see something in public, you are allowed to photograph and record. Don't get in between officers and what they're doing. Use common sense, if someone asks you to move back five or ten feet, that may be reasonable. But it may not be reasonable if someone orders you to leave an area where something interesting is happening while allowing the public to remain or ordering you to stop photographing a building while standing on a public sidewalk.
Remember that during encounters with law enforcement officers - if you do not comply with their orders (whether lawful or even reasonable) you may be subject to arrest along with the seizure of your equipment. With the proliferation of digital photography, there is no obligation to show your images to a law enforcement officer even though you may be asked to do so. No one may view the photographs in your camera without your consent, although under certain conditions known as "exigent circumstances" an officer may seize your camera/recorded material if s/he believes that it contains evidence of a crime in order to prevent it from being lost or destroyed. Those files may not be searched (viewed/copied) without proper legal authority such as a search warrant or subpoena. Under no circumstances may anyone delete or erase those recordings or order you or a third party to do so.
"Arresting Effects" by Tony Bluma
But it is one thing for you to know your rights as a photographer and quite another for a security guard or policeman to recognize or even care about those rights. So what should one do when faced with these ever-increasing encounters? Obviously every situation is different, but it is important to stay calm, speak in a conversational tone and be respectful. Whenever possible try to keep recording the interaction as it may be your best evidence of what actually happened should you get arrested. If the officer or guard is willing to talk (which often they are not) try to explain your position and respectfully assert your understanding of your rights. If that does not work, request to speak to a supervisory or public information officer. If that is not possible you may be faced with a personal decision as to whether what you are doing is important enough to risk arrest. No one else can make that decision for you as it is your liberty that is at stake. Should you be arrested, you may ultimately win the legal battle but that usually takes some time and may also be costly.
A measure that has led to photography as a suspicious activity comes from language found in documents published by the federal government. Issued by the Department of Homeland Security, the ISE-SAR Criteria Guidance table (p.29) lists "photography" as "taking pictures or video of facilities, buildings, or infrastructure in a manner that would arouse suspicion in a reasonable person. Examples include taking pictures or video of infrequently used access points, personnel performing security functions (patrols, badge/vehicle checking), security-related equipment (perimeter fencing, security cameras), etc." This section also contains a note that states: "These activities are generally First Amendment-protected activities and should not be reported in a SAR or ISE-SAR absent articulable facts and circumstances that support the source agency's suspicion that the behavior observed is not innocent, but rather reasonably indicative of criminal activity associated with terrorism, including evidence of pre-operational planning related to terrorism."
While this revised definition of photography is certainly welcome there are many organizations including the LAPD that still define under suspicious activity someone who "takes pictures or video footage (with no apparent esthetic value, i.e., camera angles, security equipment, security personnel, traffic lights, building entrances, etc.). Unfortunately these definitions have erroneously created the impression in law enforcement circles that photography is a categorically suspicious activity rather than a constitutionally protected form of expression. It has also led many officers to stop, question, interfere with and detain those recording on city streets in an unrealistic and expanded view that automatically equates photography with terrorist or criminal surveillance.
FILLING UP THE STREET by David Adler
Once again the general rule for photography is: where there is public access in such traditional public forums as a sidewalk or a park you are permitted to photograph anything in plain sight (i.e. buildings, people) because in such places there is no "reasonable expectation of privacy." In other areas that are generally open to the public but maybe privately owned such as a mall, recording may be restricted either by posted signs or by mall personnel. In order to avoid confrontations it is always a good idea to check with property owners to obtain permission before taking pictures.
There is also a very big distinction between photographs taken for editorial (journalistic) purposes and those made for commercial gain (advertising or product sale). Depending on the type of photography in question, many parks and transit systems require those wishing to take pictures to obtain a permit in advance. Usually such permits require that a fee be paid and that proof of insurance be provided. Another important difference is the need for model releases when photographing someone for commercial purposes. It is very important to remember that just because you may have a right to photograph something or someone does not mean you have a right to use that material in any way you choose, even when shooting in a public place.
The National Press Photographers Association (NPPA) has been involved in many of the incidents mentioned above. For a list of resources regarding your rights go to: http://nppa.org/member_services/advocacy/restrictions_on_public_photography.html.
DISCLAIMER - This blog is not intended to be legal advice nor does it create an attorney-client relationship. Laws and regulations vary from one area to another and federal, state or local laws may apply. Anyone seeking legal advice should contact an attorney in their area of the country familiar with these types of situations and First Amendment Law.
Mickey H. Osterreicher is of Counsel to Hiscock & Barclay, and serves as general counsel for the National Press Photographers Association (NPPA). The NPPA is a non-profit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. NPPA's almost 7,000 members include photographers, editors, students and all those interested in photography willing to abide by a code of ethics. Since its founding in 1946, the NPPA has vigorously promoted the constitutional rights of journalists as well as freedom of the press in all its forms.