Photography & The Law: Some Conventional Wisdom

Posted by Mickey H. Osterreicher — 23 Aug 2012


Mickey on assignment 1971 by Mickey Osterreicher
When I was 19 I covered my first political convention. In 1972 the democrats were meeting in Miami Beach where they nominated George McGovern to run against Richard Nixon. The Vietnam War was coming to an end and I was the photo editor of my college newspaper, The Spectrum. I never expected to get credentials but persistence paid off and I found myself walking around the Miami Beach Convention Center - spending almost as much time shooting pictures outside as inside. I was in awe of the Life Magazine photographers and other well known photojournalists who were also covering the event. For some reason I have a knack for recognizing people and was often able to get a few frames off before the rest of the media realized who was walking by.

Of course a lot has changed since then. Black & white film - the staple of photojournalism is now a quaint novelty along with the unfettered access journalists had - even for a young hippie looking kid with a Nikon.


Jesse Jackson walks into the Miami Beach Convention Center on his way to addressing the 1972 DNC. by Mickey Osterreicher


Credentials from the DNC 1972 by Mickey Osterreicher

Forty years later as I get ready to leave to cover this year's political conventions in Tampa, FL (Republican - August 27-30) and Charlotte, NC (Democratic - September 3-6) I expect there to be almost as many cameras present as people. If the NATO Summit in Chicago this past May was any indication, then journalists covering events outside the conventions can expect that everyone-mainstream media, bloggers, citizen journalists, protesters, and bystanders-will have a camera of one kind or another. With the widespread proliferation of cellphone cameras, capable of recording high-quality images along with audio and video, it seems like everybody is documenting everything and everyone.

Everyone had a camera at the NATO Summit in Chicago by Mickey Osterreicher


That is the main reason I will be there. To do my best to ensure that the Constitutional right to photograph and record on public streets is not abridged during what are expected to be ongoing protests in both cities. I am hoping to avoid a repeat of the troubling incidents that occurred at the political conventions in St. Paul and Denver in 2008.

Officers from the Miami Beach Police Department outside the 1972 Democratic Convention by Mickey Osterreicher

Both Tampa and Charlotte have established security zones (see Tampa Secret Service info) around their respective convention centers. Those ordinances also ban a long list of items deemed to be potential weapons, so photographers who might come prepared with gas masks may find they are violating the new restrictions by carrying one. Also prohibited, from places designated as "public viewing areas," are: "sticks, poles, ladders, monopods, bipods, and tripods." Additionally unless you have a Media credential from the RNC, you may not enter the "security perimeter" around the convention center with "tripods for cameras; voice enhancement devices, such as bullhorns; camcorders and cases, large cameras with lenses over four inches or backpacks or carry cases for binoculars or cameras,"

It is also important to note that many of the streets in Charlotte that appear to be public are actually privately owned by many of the banks in that city, which may further complicate the right to record.

Another concern will be the enforcement of H.R. 347 also known as "The Federal Restricted Buildings and Grounds Improvement Act of 2011," which was signed into law in March, making it a federal offense to cause a disturbance at certain events. More specifically, anyone who trespasses on specified property or at times and locations "so restricted in conjunction with an event designated as a special event of national significance" may be prosecuted and subject to a fine or imprisonment or both. Both conventions have been designated a "National Special Security Event" by the Department of Homeland Security.

Hubert Humphrey at the 1972 DNC by Mickey Osterreicher


When covering demonstrations, protests, marches and rallies you should be aware that there is a risk of arrest. Just because you may be a photographer, have a camera or believe that you have a lawful reason for being present to observe, document and report on these events does not provide immunity from being arrested along with those participating in these events. 


Police making an arrest during the NATO summit in Chicago by Mickey Osterreicher 

If a police officer orders you to move, it is advisable to comply with the request. How far you move is something that you will have to decide for yourself. If you believe that the order is not a reasonable one, ask to speak to a supervisor or the public information officer if that is possible. It is important to be very aware that most police officer do not like to be questioned or challenged once they have told you to do (or not do) something and a mere hesitation, question or request may result in your detention or arrest. Only you can make that judgment call as to what to do. Every situation is different as is every police officer's reaction to your behavior. 


Photographing Chicago Police in front of the Mayor's home during NATO Summit protests by Mickey Osterreicher

While covering these events police may ask to see your images, recordings or files. Be aware that you do not have to consent to such a request. They may try to intimidate, coerce or threaten you into doing so but "consent" must be voluntary. You should know that absent consent or "exigent circumstances" an officer may not seize your camera.

For many of the reasons listed above it is very important to work in pairs or groups so that someone may be able to notify those of us working to protect your rights that you have been arrested or are in police custody. Another suggestion is that, to the extent possible, video & audio recording events before a situation becomes a problem and continue to record for as long as possible. Such recordings may be the best evidence to refute whatever you may be charged with.

George Wallace at the 1972 DNC by Mickey Osterreicher

For more extensive information and updates see my NPPA Advocacy Blog. If you get into trouble or have questions about certain situations please feel free to contact me by email at lawyer@nppa.org or by text or cellphone at 716.983.7800. For more information and links to reference material regarding your rights as a photographer go to the NPPA Know Your Rights Page

And finally for those who may not have seen it, please check out my recent interview with James Estrin of the NY Times regarding criminalizing photography

DISCLAIMER - This blog is not intended to be legal advice nor does it create an attorney-client relationship. It is not possible to anticipate every situation. 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 criminal and First Amendment Law.

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