Imagine two very different personality types. One likes authority and control and believes in order and security. The other is independent, inquisitive, and perhaps a bit pushy. Both are convinced they are working for the public good. Now, put a badge and a gun on the first type, and hand the second type a camera. Do you see a potential for conflict?
The First Amendment gives photographers and videographers almost unlimited freedom to make images in public places. This includes every place from Wall Street to Main Street — streets, plazas, parks, bridges, shopping malls, industrial parks, city-owned airports, and transit systems.
OK, public places are fair game, but what about people? As long as they are in a public place, you can photograph or video to your heart’s content. This includes politicians, celebrities, police officers, and ordinary people.
A 9/11 Hangover?
Anyone appearing in public has given up what lawyers call “a reasonable expectation of privacy.” It doesn’t matter whether they are central to your image or incidental. (Of course, what you can legally do with those images after you have made them is another matter.)
However, your image-making activities may attract the attention of law enforcement officers or other officials who think what you are doing is illegal and needs to be stopped.
Perhaps the resilient trauma of the 9/11 attacks explains why photographers sometimes run into trouble while photographing in public places. Or maybe it is just the conflict between two very different personality types.
Bert Krages, attorney and author of Legal Handbook for Photographers, says few public places have rules prohibiting photography. But you wouldn’t know that from the way some officials have been behaving.
Exposing Interference with Photographers
The Washington Post has been doing an excellent job reporting on cases in which police have interfered with photographers and videographers who had every right to be making images.
In July, the newspaper’s online edition reported on 10 incidents in the D.C. area over the past two years when photographers on public property aroused the ire of law enforcement officers or other officials.
For example, in 2008 at Washington’s Union Station, a public place, a security guard told a Fox 5 television news crew to stop filming an interview with an Amtrak official. Ironically, the official was explaining that photography is permitted in the station.
In that same venue, a restaurant manager asked a still photographer for his permit to shoot pictures—in an area where no permit or permission is normally required.
In 2009, police officers told a professional freelancer covering Washington’s Chinese New Year celebrations on a public street to stop photographing them in the act of questioning someone standing nearby.
Police Should Not Expect Privacy
Court rulings and official police policy have made it clear that police officers have no reasonable expectation of privacy while on duty in public.
Nevertheless, when D.C. police were ticketing speeders near Grant Circle, they told a photographer who was capturing this seemingly benign public-safety campaign to pack up his gear and leave the area.
Police in our nation’s capital also seem to have it in for Jerome Vorus, a particularly unlucky college student. So far this year, he has been detained twice for making photographs — once on a public concourse at Ronald Reagan Washington National Airport, and once on the street in Georgetown while police were conducting a traffic stop.
Overzealous Security Guards
Pictures of the exterior of the Department of Housing and Urban Development headquarters appear on HUD’s website and on Google Maps. But that didn’t seem to register with one of the building’s security guards, who blocked a photographer from making similar shots.
Not to be outdone in their efforts to protect national security, guards at the Department of Transportation headquarters have been equally zealous. But finally, in 2009, they relented, allowing a photographer to get a shot of the building — after being questioned.
Guards at federal buildings are within their rights to question photographers, but they overstep their authority if they deny permission to photograph a federal building from a public location.
A Night on the Town — and an Arrest
The police and other officials may simply dislike being photographed, or they may truly believe they are upholding the rights of people and of property.
They may also simply want to control the situation and exert their authority, says Jay Bender, the Reid H. Montgomery Freedom of Information Chair at the University of South Carolina’s School of Journalism and Mass Communications, and a lecturer at the university’s law school.
Bender, who is also an attorney for the South Carolina Press Association and the South Carolina Broadcasters Association, tells the story of a photographer working for the State newspaper in Columbia, South Carolina.
The photographer was enjoying a night on the town with friends in the city’s popular Five Points neighborhood. The police, meanwhile, were busy ticketing and towing cars parked in front of various nightspots.
When the photographer went to the lot where the cars had been towed, identified himself as a journalist, and tried to find out what was going on, he was arrested.
“Of course, the arrest was invalid and the charges were ultimately dismissed, because fortunately he had a videotape of the police acting in excess of their authority,” Bender says. “But it’s generally better to avoid the confrontation if you can.”
Getting Roughed Up by the Cops
March 21, 2009, was the deadliest day in its history for the Oakland, California, police department. Four of its officers were killed in two separate incidents.
Retired KGO-TV videographer Doug Laughlin went to Highland Hospital to film the ambulances arriving in front of grieving fellow officers and family members.
Several officers attacked Laughlin, shoved him against a parked car, and broke the viewfinder on his camera — all of which Laughlin caught on film and posted to YouTube.
Despite the fact that he was a journalist covering a newsworthy event from a public vantage point, Laughlin was threatened with arrest and ultimately kept away from the hospital when the police strung yellow crime-scene tape across his path.
Laughlin has filed a federal civil rights lawsuit against the Oakland Police Department in U.S. District Court in San Francisco. He is asking for unspecified damages and an injunction to prevent police interference with journalists.
“The public has a right to be informed and for its journalists to report the news,” says Charles Bourdon, one of Laughlin’s attorneys. “Mr. Laughlin was doing his job to present a newsworthy event to the public and was not at any time interfering with the legitimate actions of the police.”
The Gulf Oil Spill and BP
The Gulf of Mexico is a public place, and no one doubts that the recent oil spill was a newsworthy event. Yet British Petroleum contractors, backed up by the U.S. Coast Guard, prevented a CBS television crew from filming a beach in South Pass, Louisiana.
Coast Guard officers, citing “BP’s rules,” threatened to arrest the CBS crew.
This confrontation and others like it were the subject of an online article July 28 by Mickey H. Osterreicher, general counsel for the National Press Photographers Association. Osterreicher says there were “numerous reports of government interference with press coverage of the Deepwater Horizon disaster in the Gulf of Mexico.”
For example, police detained a freelance photographer in Texas City, Texas, for making images of a BP refinery. A BP employee and local police officers stopped the photographer at a nearby gas station and demanded to see his identification and his digital images.
The reason? “National security.”
An Ongoing Story
Clearly, the rights of image makers and the protections guaranteed by the First Amendment are not always respected by those in authority. I will continue this discussion of image makers and the law in my next column.
The material in this column comes from a chapter I wrote on media law for Videojournalism: Multimedia Storytelling, a new textbook by Ken Kobré, professor of photojournalism at San Francisco State University and author of Photojournalism, the Professionals’ Approach, now in its sixth edition. Focal Press will publish Kobré’s new book in 2011.
Meanwhile, if you have had any experience with this perplexing issue, I’d love to hear from you.