First Amendment under attack

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Public spaces are fair game for photographers – a right protected under the First Amendment as free speech. But in recent years that right has come under attack by law enforcement and officials, who are challenging the constraints of what can and cannot be filmed in a public space. Now, more than ever, photographers would be well-advised to learn their rights.

As the director of photography at The Baltimore Sun, I deal with legal issues concerning a number of topics, from copyright to privacy to trespassing to public access. First, let me state, I am not a lawyer nor have I ever played one on television. But, I am called upon often to give my opinion, or at times, state that The Sun should consult a real lawyer.

The one topic that concerns me the most in recent years is law enforcement’s misconceptions regarding the legality of a person’s ability to photograph in a public space. Photography in a public space is free speech protected under the First Amendment.

People believe that the press is granted special privileges because they have credentials. This is not the case. The press has no greater access then the average person in a public space, and certainly no less access. So a photographer standing in a crowd at a crime scene should not be singled out to move back unless everyone else is asked to do the same.

When confronting a photographer who is taking pictures in a public area such as a train station, police and other officials will often site the Patriot Act as forbidding photography. The Patriot Act does not forbid photography.

In May 2011, Baltimore Sun reporter Michael Dresser wrote about photographer Christopher Fussell, who was detained by three MTA police at a Baltimore City light rail stop while taking photographs.

Dresser wrote, “The right of photographers to take pictures in public places has been a point of contention virtually since the invention of the camera. But the disputes have become more frequent — and more contentious — since the terrorist attacks of September 11, 2001, which prompted police to challenge individuals who take photos or video of public infrastructure as potential security risks.”

“Civil libertarians and rights advocates say police have been given no new powers to curb photography since 9/11. In many cases, they say, police are making up laws and rules on the spot and issuing orders they have no right to give,” he added.

Someone who has been at the forefront of defending photographers’ rights is Mickey H. Osterreicher, General Counsel for the National Press Photographers Association (NPPA) and editor of their press advocacy blog. Osterreicher in the same article stated, “I call it the Patriot Act gone wild. For some reason, police see someone with a camera and they don’t want them to take pictures or want to assert their authority.”

Osterreicher recently did a Q&A on the subject with The New York Times blog, Lens, in which he addressed the attack on photographers’ rights to take pictures in public places. New York Times freelance photographer Robert Stolarik was arrested a few weeks ago while photographing police during an street brawl.

The Baltimore City police have had their own issues dealing with photographers filming or photographing police officers. In 2010, Christopher Sharp had his cell phone confiscated after filming police arresting a woman during an altercation at the Preakness.

Sharp, represented by the ACLU, filed suit against the Baltimore Police Department. In response to the suit, former Police Commissioner Frederick H. Bealefeld III issued a General Order J-16 for the “video recording of police activity” in Nov. 2011, which was made public Feb. 2012. The purpose of the order was to give clear guidelines to officers in the field on how to handle photographing of police officers performing their duties.

However, less then 24 hours after the order was released, Scott Cover was threatened with arrest, while shooting a video from across the street of officers taking a man into custody. The police say he was threatened with arrest for loitering, not for photographing the incident.

The Sun’s photographers grapple with public access issues quite often. Where can they take pictures and where they can’t. Even though the laws are fairly cut and dry, the response from authority figures isn’t. Whether it’s a security guard, MTA official, police or sometimes John Q. Public, there are too many times when someone looks to assert power where it doesn’t belong.

Our photographers have to be professional and polite as possible while still defending their First Amendment rights as a members of the press and as citizens.