SPLC TIP SHEET: Takingphotos and shooting video at protests, demonstrations and crime scenes
Collegecampuses and their surrounding neighborhoods regularly are the scene of masspublic gatherings, some celebratory and some enraged, some planned and some spontaneous.When police engage in crowd control, journalists – especially students, who maybe unrecognized by police officers – often find themselves rounded up andjailed along with the participants they’re covering.
Ithappened to student videographer Cameron Burns when police swept him up alongwith protesters marching in opposition to California tuition increases, ithappened to college journalists Judy Kim and Alisen Redmond as theyphotographed “Occupy Atlanta” demonstrators in 2011, and it happened to studentphotojournalists Desiree Mathurin and Sam Bearzi while covering citizenprotests against police violence in New York City. In each case, thejournalists endured an uncomfortably long jail stay and had to fight criminalcharges just for getting close to the action they were covering – asjournalists are trained to do.
At the University of Missouri, studentvideographers Tim Tai and Mark Schierbecker found themselves unexpectedly atthe center of a national news story when demonstrators demanded that they stop recording in a publicly viewable location on the campus quad – and universityemployees supporting the protesters escalated the confrontation nearly to thepoint of violence.
Knowingthe law – and how to assert it diplomatically – can help photojournalists andvideographers stay out of trouble with law enforcement, or at least minimizethe harm if a confrontation occurs.
Yourrights can vary depending on where you are standing. If you are standing on asidewalk, the lawn of a park or a comparable piece of public property that isopen to foot traffic, then you have a right to photograph and videotapeanything you can see from that vantage point. You cannot be charged with anoffense as long as you are not unduly obstructing other pedestrians. But beinga journalist is not a license to jaywalk, trespass on private property, blockautomobile traffic or otherwise violate laws that apply to everyone else.
Thereis no “right not to be photographed” in a space that is visible to public foottraffic, even in the event of a medical emergency. That includes minors;children do not have any heightened privacy rights in their outward appearancein a publicly viewable space. Even if an “invasion of privacy” does occur,that’s not a crime enforced by police that can result in arrest; it is a civilclaim that can be brought by way of a lawsuit.
Policenever have authority to destroy images or order a photojournalist to do so.Photos are personal property (or property of the employer), and destroying themcan lead to both criminal prosecution and financial liability – law enforcementofficers have been successfully sued for wrongful destruction of property forerasing memory cards. If police believe that images were taken in a place wherethe journalist should not have been standing, the lawful response is to issue acitation for trespassing, not to destroy the pictures.
Thefact that a piece of property is privately owned does not automatically mean nophotography is allowed, or that taking photos is an invasion of the subjects’privacy. The lobby of a convention hotel is a privately owned space, but thereis no “reasonable expectation of privacy” there, and a person photographedagainst his will has no claim for invasion of privacy. A photographer who isasked to stop shooting, or to leave the premises, by an employee of thebusiness should comply, but a customer cannot “order” a journalist to stoprecording.
The Privacy Protection Act 42 U.S. Code § 2000aa, is a federal statute that prohibitspolice from searching private spaces where journalists store their work. Underthe PPA, an officer who wants to look into a journalist’s car trunk, briefcaseor other storage area to inspect the journalist’s work product must get a courtorder after a hearing at which the journalist is represented. While the law wasenacted specifically to prevent searches of newsrooms, its wording is broadenough to apply to any space where unpublished work is kept, including the harddrive of a laptop or the memory of a camera.
TheFourth Amendment also provides all citizens, including journalists, withprotection against excessively invasive searches of their cellphones whenstopped by police. Police cannot “go fishing” for speculative evidence ofcrimes in the memory of a cellphone, which might contain a journalist’s notesor messages from confidential sources. As the Supreme Court observed in a recent Fourth Amendment case involving the search of a phone: “One of themost notable distinguishing features of modern cell phones is their immense storagecapacity. Before cell phones, a search of a person was limited by physicalrealities and tended as a general matter to constitute only a narrow intrusionon privacy.” Journalists who believe their cameras or phones are about to besearched should clearly identify themselves as working members of the newsmedia and invoke both the PPA and the Fourth Amendment.
Ahandful of states have outdated “wiretapping” statutes that can apply torecorded face-to-face conversations (as opposed to intercepted phone calls,what most people think of as “wiretapping”). But those statutes cannot beapplied to criminalize recording a public event where there is no “expectationof privacy.” In recent years, two federal appeals courts – in Illinois and Massachusetts– have said there is a constitutionally protected right tovideotape police doing official business in public.
Thereis no law against shooting images of the exterior of police stations,courthouses or jails. In fact, the Department of Homeland Security issued a bulletin to its employees in 2010 telling them to stop hassling photographerswho were merely filming outside of quote-unquote “sensitive” federal buildings.Anything visible from the naked eye from a public vantage point – even theheadquarters of the FBI – is fair game to photograph.
TEN TIPS FOR AVOIDING (OR SURVIVING)CONFRONTATIONS
WHILE COVERING PROTESTS
Wear conspicuous press credentials, even if they are just credentialscreated by your publication. Make contact with officers when you arrive at thescene to identify yourself as a journalist.
Never escalate a confrontation by layinghands on a police officer, physically resisting the seizure of your camera or directlydisobeying an order; a calm and respectful counter-argument is much more likelyto succeed than a defiant one.
Upload photos regularly if yourcamera is wireless-enabled. Your cameras will be seized if you are arrested,and even if the memory cards are returned, images may have been (unlawfully)deleted.
Carry important phone numbers of people you’ll call in anemergency, including several editors’ cell numbers (memorize the numbers orwrite them on your forearms, because the police will immediately take away yourcellphone and wallet). Carry quartersin case the jail provides only a payphone.
Inventory your belongings (cellphone, camera, audio recorder)in advance – you’ll need as much detail as possible if you are trying toreclaim an item at the jail that’s been taken from you.
Call someone trusted (editor, adviser, parent, spouse)the moment that it appears you’re about to be arrested, because it may be hoursbefore you can get access to a phone if you’re jailed. Use Twitter and otherpublicly accessible channels to get the word out widely so people will knowwhere to look for you.
Gather all the information you can about your arrest – recordor videotape the arrest if you can, make sure you know which police agency madethe arrest and, if possible, get the names of all officers involved and of anywitnesses.
Ask for legal representation if you are being interrogated whileat the jail – and then stop the conversation completely.
Read the fine print of anything you are asked to sign –and think very carefully before you sign a “post and forfeit” bond, becausethat means you are agreeing to admit what you’re charged with and waive a courtappearance.
Demand a court appearance if you have been held for more than24 hours without being taken before a judge or magistrate.