'First Amendment rights can be terminated': When cops, cameras don't mix
Video from March 2012 shows Chicago police taking members of the media into custody.
The video is chilling, but it's also a sign of the times.
Tales of reporters, protestors and citizen journalists being threatened or arrested for filming law enforcement officials during disputes are on the rise, critics say, with Occupy Wall Street protests a lightning rod for these incidents. The National Press Photographers Association claims it has documented 70 such arrests since September and, in May, called on U.S. Attorney General Eric Holder to focus attention on the issue.
"The First Amendment has come under assault on the streets of America," the photography association said in a letter to Holder that was also signed by several other interest groups. "Police have arrested dozens of journalists and activists simply for attempting to document political protests in public spaces.”
Such allegations are ironic, given the sharp rise in police surveillance technology, which gives cops vast capabilities to film citizens, said Catherine Crump, an American Civil Liberties Union attorney.
"It is true that Americans are photographed more and more today as they walk around in public spaces," Crump said. "And it is ironic that law enforcement agencies are objecting when the same activity is being used to film their activities. But it's not surprising because there's often a double-standard in this space."
There's always been a tense relationship between cops and cameras, but that relationship is being pushed to the brink now that half of U.S. adults carry smartphones, nearly all of them capable of filming and sharing visuals instantly with the whole world via the Internet. Cops at Occupy Wall Street protests -- such as those at Zucotti Park in New York City -- routinely deal with dozens of amateur photographers shoving cameras in their faces, many of them aggressive. It's not hard to see how the cameras can escalate an already tense situation.
But First Amendment law is clear: Citizens in public spaces have a right to film things they see in plain sight. Courts have repeatedly upheld that right in high-profile cases. Court rulings sometimes have no bearing during intense situations, however.
"It wouldn't really matter with some police officers if you had an original copy of Bill of Rights with you," said Mickey Osterreicher, a lawyer for the press photographers association. He said he deals with new cases nearly every day involving photographers who he believes have been wrongly arrested.
"The sign on my desk that reads, 'Bang head here,' is getting worn out," he said.
In April, Connecticut's State Senate passed a law that clearly defined citizens' right to film, but the state's lower house failed to act on the measure. The proposal was introduced by Sen. Majority Leader Martin M. Looney , D-New Haven, after a series of incidents involving cops in that state's capital city. In one, a police officer is caught on camera saying “You don’t take pictures of us,” before making an arrest. In another incident, 26-year-old Luis Luna was arrested for filming an arrest, and video files on his iPhone were deleted.
"In the past several years, police officers have wrongly arrested members of public for using video cameras or cell phone cameras," said Adam Joseph, a spokesman for Looney. "In the opinion of a number of senators, there were far too many instances, and that demonstrated the right to videotape needed to be codified and is unfortunately necessary."
The proliferation of devices that can film and share has made this conflict almost inevitable, but there are other causes, too.
“So many mainstream journalists have been laid off and are freelancing,” said Osterreicher, the press association lawyer. ”Then you have people who consider themselves citizen journalists. They have ‘pro-sumer’ devices capable of taking video and still images with the same quality as pro equipment, and can share them with the world, without mainstream media. That’s something we've never seen, until recently.”
'Threatening act'
As a result, civil liberties lawyers have beaten a path to courthouses around the country, said Crump.
"We do hear about these more frequently now because everyone walks around with cell phone cameras,” she said. “Law enforcement officers sometimes react badly to this, and view it as a threatening act.”
The most celebrated case involves Simon Glik, who in 2007 filmed police arresting a homeless man near Boston Commons. Glick was arrested and charged with violating the state's wiretapping law. His case was dismissed, but he then brought a federal civil rights lawsuit against the city. In August 2011, the First U.S. Circuit Court of Appeals for the First Circuit ruled unanimously in his favor.
"That decision is 24 pages of pure gold," Osterreicher said. "The judges talked about the right to record in public. They said the First Amendment right is self-evident. They took judicial notice of the fact that news is as likely to come from someone with a cellphone as anyone. And they talked about the fact that police officers … should expect to be recorded when out in public."
In March of this year, Boston paid Glik $170,000 to settle the suit. Osterreicher said.
"It's really not up to police officers to decide what is and isn't newsworthy,It's a shame Boston had to learn an expensive lesson."
Other rulings have offered a similarly strong endorsement of the right to film, Crump said.
"The First Amendment is strongly protective of right to video and record in public spaces. There’s obviously a good reason for that. Sunlight is the best disinfectant," she said. She said court rulings have been so consistent, she’s not worried about any weakening of the First Amendment – but she is worried about the more practical side of the problem. Glik's settlement -- most of which paid for his legal fees -- took five years to arrive. In most real-life situations, police officers have wide discretion, and few observers have the time, money or wherewithal to see a First Amendment case through to completion.
Osterreicher, both a former journalist and a reserve police officer, prefers far more practical methods. He travels the country training police officers in First Amendment law. Invited by Chicago police brass, he offered such training in advance of recent NATO meetings in Chicago, which attracted sizable protests. He thinks it worked: To his knowledge, only one photographer was arrested during those protests.
He also offers suggestions tips to would-be cop video-graphers.
"The First Amendment is not absolute," he said. "It is subject to reasonable time, place and manner restrictions. But the key word is ‘reasonable.’ Is it reasonable when covering a protest to ask someone to stand back or get on a sidewalk? Absolutely. Is it reasonable to expect the press to go away when there is an order to disperse? No."
One rule that is fairly absolute, he said: While there are situations when police can seize cameras and cellphones, they have no right to destroy data, such as pictures or videos, without consent from the owner. In fact, doing so could be considered destruction of evidence.
The ACLU hosts an information page******* some of the information is below, check the web site for more help*******designed to help amateur photographers understand their rights on its website. But Crump offered a thumbnail sketch of the law that draws an important distinction between public and private property.
"Generally, when you are in a public space where you have the right to be, you have right to photograph anything in plain view, and that includes police who are executing their duties,” she said. “But if you are on private property, the property owner gets to set the rules.” But Osterreicher said any advice photographers receive should come with a warning: "It's complicated."
"I can't give you an answer that covers all situations. You’re going to have to make an assessment,” he said “Is this officer nonchalantly asking you to move? Or is he getting real cranky? A lot of situations can be defused with conversation. … You want it to end well.”
Know Your Rights: Photographers
American Civil Liberties Union
Know Your Rights: Photographers
Taking photographs of things that are plainly visible from public
spaces is a constitutional right – and that includes federal buildings,
transportation facilities, and police and other government officials
carrying out their duties. Unfortunately, there is a widespread,
continuing pattern of law enforcement officers ordering people to stop
taking photographs from public places, and harassing, detaining and
arresting those who fail to comply. Learn more
Your rights as a photographer:
| Know Your Rights: See more essential resources from the ACLU |
- When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government and is important in a free society.
- When you are on private property, the property owner may set rules about the taking of photographs. If you disobey the property owner's rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
- Police officers may not generally confiscate or demand to view your photographs or video without a warrant. If you are arrested, the contents of your phone may be scrutinized by the police, although their constitutional power to do so remains unsettled. In addition, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves (it is unsettled whether they still need a warrant to view them).
- Police may not delete your photographs or video under any circumstances.
- Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations. Professional officers, however, realize that such operations are subject to public scrutiny, including by citizens photographing them.
- Note that the right to photograph does not give you a right to break any other laws. For example, if you are trespassing to take photographs, you may still be charged with trespass.
SPECIAL FEATURE
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- Always remain polite and never physically resist a police officer.
- If stopped for photography, the right question to ask is, "am I free to go?" If the officer says no, then you are being detained, something that under the law an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.
- If you are detained, politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment and does not constitute reasonable suspicion of criminal activity.
With regards to videotaping, there is an important legal distinction between a visual photographic record (fully protected) and the audio portion of a videotape, which some states have tried to regulate under state wiretapping laws.
- Such laws are generally intended to accomplish the important privacy-protecting goal of prohibiting audio "bugging" of private conversations. However, in nearly all cases audio recording the police is legal.
- In states that allow recording with the consent of just one party to the conversation, you can tape your own interactions with officers without violating wiretap statutes (since you are one of the parties).
- In situations where you are an observer but not a part of the conversation, or in states where all parties to a conversation must consent to taping, the legality of taping will depend on whether the state's prohibition on taping applies only when there is a reasonable expectation of privacy. But that is the case in nearly all states, and no state court has held that police officers performing their job in public have a reasonable expectation. The state of Illinois makes the recording illegal regardless of whether there is an expectation of privacy, but the ACLU of Illinois is challenging that statute in court as a violation of the First Amendment.
- The ACLU believes that laws that ban the taping of public officials' public statements without their consent violate the First Amendment. A summary of state wiretapping laws can be found here.
Photography has also served as an importAmerican Civil Liberties Unionant check on government power in the airline security context.
The Transportation Security Administration (TSA) acknowledges that photography is permitted in and around airline security checkpoints as long as you're not interfering with the screening process. The TSA does ask that its security monitors not be photographed, though it is not clear whether they have any legal basis for such a restriction when the monitors are plainly viewable by the traveling public.
The TSA also warns that local or airport regulations may impose restrictions that the TSA does not. It is difficult to determine if any localities or airport authorities actually have such rules. If you are told you cannot take photographs in an airport you should ask what the legal authority for that rule is.
The ACLU does not believe that restrictions on photography in the public areas of publicly operated airports are constitutional.
If you think your rights have been violated at an airport, let us know >>
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