Eye on Image-Making: Photographers and the Law, Part 2

Photographers and videographers sometimes come into conflict with law enforcement and other government officials who try to stop them from making images in perfectly lawful places. The officials may believe they are protecting property or privacy rights, or they may simply be trying to exert their authority and control.

The widespread availability of cell phones with cameras has added a new twist to this ongoing conflict. People are now recording their own and other peoples’ arrests. Needless to say, this turn of events has not exactly been popular with police forces across the county.

Your Right to Record Arrests

In an effort to crack down on this increasingly popular practice, prosecutors in some jurisdictions are using laws that make it a crime to record an audio conversation without the consent of both parties. Does this mean a silent video would be OK?

On July 8, 2010, the National Public Radio show “Talk of the Nation” broadcast a segment called “The Rules and Your Rights for Recording Arrests.”

On the show with host Neal Conan were Radley Balko, senior editor of Reason, a libertarian magazine; James Machado, executive director for the Massachusetts Police Association; and Carlos Miller, a photographer who was arrested for photographing police making an arrest.

Be Careful in Massachusetts, Maryland, and Illinois

Massachusetts, Maryland, and Illinois are states where you can be arrested for violating wiretapping laws if you record police without their consent — even if you are on public property — according to Reason editor Radley Balko.

In Boston, a man recorded audio of a drug bust, and then was himself arrested for illegal eavesdropping. If a police officer orders someone to stop recording, that person can be arrested for disobeying a lawful order if they fail to comply.

Felony charges were brought against several people in Baltimore for recording their own arrests. The arrests apparently began after a University of Maryland student was beaten by police last February following a basketball game.

The beating was caught on cell-phone cameras and posted on YouTube. A police-operated security camera trained on the area mysteriously stopped working during the beating, Balko said.

In Massachusetts, there has to be consent from both parties for any audio recording, said the police association’s James Machado. Videotaping usually exonerates the police of any charges of wrongdoing — if the encounter is shown in its entirety, he said.

What police object to, said Machado, is unfavorable “snippets” being broadcast that show only parts of an event. Some police departments routinely videotape arrests in case someone claims the police acted improperly.

Watchdog or Lapdog?

Photographer Carlos Miller runs a blog called “Photography is Not a Crime, It’s a First Amendment Right.” On it, he posts photographs and videos from people who have been hassled by police.

Miller said he was arrested and charged with nine misdemeanors for photographing a police arrest after being told to stop. Miller was on a public road, he said. Later, he was acquitted of all charges, including resisting arrest without violence.

Instead of stopping someone from making images, the police or other officials sometimes demand to see what a photographer or videographer has shot. For example, the police may want to see still or video images from a political protest that turned violent, in order to identify the instigators.

Many journalists — photographers, videographers, and writers — object to this practice. They say it turns the press from watchdogs into a lapdogs and contributes to the public’s distrust of journalists.

Trust in the press would be seriously eroded if the public believed journalists worked hand in hand with law enforcement, routinely turning over unpublished material to further police investigations.

In addition, the First Amendment promise of a free press is compromised if journalists have to worry about Big Brother peering over their shoulders.

Your Photos, Please

On December 11, 2009, photojournalist David Morse, who works for the San Francisco Bay Area Independent Media Center, or Indybay, covered a protest at the home of Robert J. Birgeneau, chancellor of the University of California, Berkeley. The protesters were unhappy about proposed budget cuts and a fee hike at the university.

At one point, the protest turned violent, with people breaking windows and overturning planters. Eight people were arrested by University of California police, including Morse. He said he repeatedly identified himself to police as a journalist, but his press card had expired.

As if this weren’t bad enough, Morse was later served with a warrant — the police wanted to see all of his photographs of the demonstration. The police neglected to tell the judge who signed the warrant that Morse was a working journalist.

California’s journalist shield law prevents police from subpoenaing unpublished information, including photographs, obtained in the course of newsgathering. In June 2010, a judge in the Alameda County Superior Court said that the campus police had obtained Morse’s photographs illegally and ordered them returned.

Your Film, Please

After documentary filmmaker Joe Berlinger released his 2009 film called Crude: The Real Price of Oil, Chevron and two of its executives subpoenaed all of Berlinger’s unused footage. Berlinger’s film accused Chevron of polluting the Ecuadorian rainforests.

Chevron claimed it needed the material to defend against criminal and civil lawsuits in Ecuador and also to aid an international treaty arbitration.

Under U.S. law, federal courts can order the production of evidence needed for foreign cases. Berlinger claimed a First Amendment privilege not to provide Chevron with his unused footage — more than 600 hours.

He also said that supplying the unused footage would break promises of confidentiality he had made to some of his sources.

In May 2010, Judge Lewis A. Kaplan of the District Court for the Southern District of New York issued his ruling.

The good news? Filmmakers are indeed eligible for the qualified privilege available to journalists under New York law.

The bad news? The judge held that Chevron had a compelling need for the unused footage. He also said Berlinger had not proved his confidentiality argument.

Judge Kaplan briefly stayed his order to allow for an appeal.

In July 2010, the U.S. Court of Appeals for the Second Circuit ruled that Berlinger had to turn over those parts of the unused footage that might help Chevron win its cases.

No Privilege, Says U.S. Supreme Court

The U.S. Supreme Court has refused to recognize a First Amendment privilege for journalists that would release them from the requirement — shared by all other citizens — to answer subpoenas and testify in court.

In Branzburg v. Hayes (1972), the Court said that because ordinary citizens enjoy no protection from grand jury subpoenas, journalists can’t hide behind the First Amendment. This applies as well to a journalist who has promised a source anonymity.

The Court tossed the ball into Congress’s court — you want a shield law, you write one. And you can make it as broad or as narrow as you wish.

On March 31, 2009, the House of Representatives passed H.R. 985, the Free Flow of Information Act, which would provide a qualified privilege to journalists seeking to avoid a federal subpoena.

On December 10, 2009, the Senate Judiciary Committee passed S. 448, a Senate shield bill. The bills differ on a number of key points, and there are many issues still up in the air: Who is eligible for the privilege? When can it be overridden?

So you can’t dodge the feds — yet. But many states have shield laws of one form or another to protect journalists in state and local cases. For a state-by-state rundown of journalist shield laws, visit the Citizen Media Law Project.

If You Are Subpoenaed

If you are subpoenaed, contact a lawyer. Do not destroy any of the subpoenaed material, as this can lead to serious charges. Media law experts advise being careful with any promise of anonymity to a source — because you might have to go to jail to keep your promise.

In addition to being experts at their craft, image makers need to be aware of the legal issues surrounding their chosen line of work. I will write more about image makers and the law in future columns.

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.

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