Eye on Image-Making: Photographers and the Law, Part 1


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.


8 Responses to “Eye on Image-Making: Photographers and the Law, Part 1”

  1. Your post and some experiences of myself and some friends are the reason we created http://publicphotography.org/ We hope by raising awareness of the issue that this harassment will stop.

  2. Most of the posts on the Discarted blog deal with this issue.

    http://discarted.wordpress.com/

  3. I remember right after 9/11 our president said the terrorists would not make us cower in fear. But when you look at the restrictions of civil rights and propaganda against photographers it seems that is exactly what our government is doing. Calling it "National Security" and restricting civil rights for a 10 year period it would seem the lawmakers have found a way to circumvent the Constitution, or have they.

  4. I ran into a rookie security guard outside an office building in Chicago's financial district while photographing an executive who's office was inside the building (the dingy lighting in the office would have been horrific). The guard told me that I couldn't take photos of the building.

    This in itself was a pretty amazing statement for him to be able to uphold. I informed him that the photos were being taken on a public sidewalk fully available to photographers. He backed off, looking for reasons why he might allow the photos. "Is this man a building tennant?" he asked. I told him that he was.

    The security guard went away. It had nothing to do with policy. He just felt like he was doing his job.

  5. A lot of the "law" enforcement officers think they are doing their job, a few of them are just being jerks. When this kind of thing happens to photographers who are not well known, it may get some media attention but not enough to really cause any change. Can you imagine the news coverage if Ansel Adams was still alive and was arrested for taking photographs? I guess the only thing we can do is arm ourselves with the law and choose which battles to fight.

  6. Security guards are usually the biggest obstacle for photographers these days. A friend was photographing the The Pine Bend Oil Refinery on U.S. Highway 52 south of St. Paul, MN and a security guard made him leave. He went home and got the pictures he needed off of Google Images. I just checked and there are five good pictures of the facility up there.
    Many corporations are thankful for the publicity. Security guards don’t realize this. A friend was completing an architectural coffee table book in Miami. A security guard asked him to leave when he was photographing a new business structure there. The photographer used his cell phone to call up to the CEO of the business who thanked him for the publicity and told the security guard to get the hell off his property.” -RE

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  8. Security guards need to be trained on how to handle photographers. You've made some good points here, but it's still in the training. You can secure the property, but still not impede photographers rights.

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