Student photographer Justin Kenward was in the newsroom the day before his school’s weekly publication, The Breeze, went to print.
Outside the newsroom, an elderly man collapsed in the parking lot. An ambulance was called.
Passers stopped to check out the scene. Cars slowed down to take a look. Kenward ran outside with his camera, ready to take a picture of possible news.
“As far as I know the victim had absolutely no issue with me shooting the photos,” Kenward said. “In fact, when he saw me he waved and smiled.”
Kenward was slapped with two misdemeanor charges for his actions, and for his refusal to give those pictures to authorities. He was charged with interfering with and disobeying a firefighter.
Kenward took pictures of the scene from a distance after being asked to move, and then refused to later show or give pictures when police confronted him in the Breeze newsroom.
“I wanted to scream,” he said of the Sept. 16, 2010 confrontation. “I just listened and signed the notice to appear in court.”
Kenward’s run-in with the law is only one of the many photographers around the nation — amateur and professional — are confronting.
National Press Photographers Association President Bob Carey said he hears every day about police attempting to restrict news photography of public places and events.
“As a photojournalist you have the right to document anything from public position where you are on public property so long as you are not in the road or distracting or dangerous,” Carey said.
In plain sight
Quinnipiac University student Kenneth Hartford was arrested in September 2010 after filming the arrest of another student on a public street on his cell phone. In the video, one officer says “watch this” and does a dance, appearing to “perform” for the camera. Like Kenward, Hartford was charged with interfering with an official on duty.
Jim Brown, associate director for the Commission on the Accreditation for Law Enforcement Agencies, said on-duty non-federal police officers should be able to be photographed.
“They have in some cases used these things to cover up possible misconduct,” Brown said. “But the normal police officer, state and local guys, you can photograph a lot. They wouldn’t do anything nefarious with this — you (media) are just trying to do your job and they are trying to do their job.”
He echoed the sentiments of many journalists and court rulings in saying the public does not have a right to privacy in a public area.
“But you do have a right to not be exploited or intimidated,” he said.
NPPA attorney Mickey Osterreicher went one step further, saying even private areas that appear to be public are safe grounds for photographs.
“If a reasonable person thinks they are on a public street, they can’t prohibit photographs,” he said.
Osterreicher said photographers do not need to get consent to take photos of people in public places.
While police cannot arrest someone for non-disruptively photographing in public, Osterreicher warned that it is still possible to be civilly liable for the misuse of a photo that was taken lawfully — for instance, using a photo of an overweight person in a story about morbid obesity, or selling a photo for use in an advertisement that falsely implies the person in the photo endorses the product.
“If you publish that picture and that person is clearly identifiable and you hold them up for public ridicule for being fat, then there might be another cause of action that person could weigh against you, but that still doesn’t have anything to do about your First Amendment right to take the pictures,” Osterreicher said. “People need to be aware that just because you take the pictures and have a right to do it doesn’t mean you might not be liable … for doing something with that photograph once you have it.”
Carey said misunderstandings about the scope of the right to privacy could be why Kenward and Hartford had trouble with the police.
“A lot of times I find that security people, especially private security people, are unknowledgeable about what the press rights and the public rights are for photographing,” he said.
Osterreicher said particular problems have arisen in covering public transit. He said the NPPA has fought on behalf of two photographers who were told it is illegal to take pictures in the Miami-Dade, Fla., metro system — something Osterreicher said is 100 percent false.
“Law enforcement or security officers believe a law that doesn’t exist,” he said. “They go ahead and enforce that when, in fact, there are no such restrictions… It is difficult to argue with someone who has a gun and a badge. At least at that place and time you are going to lose the argument.”
He said many law enforcement officials he deals with discourage photography under the rationale of homeland security.
“I hear about these issues on a weekly if not daily basis, from all over the country and it’s pretty much the same sad story — that somebody has told the person with the camera that they can’t take pictures because it I prohibited by law or that they are protecting against some sort of terrorist activity because it has to do with homeland security,” he said.
At the scene of a crime or a public-safety emergency, as was in the case for both Kenward and Hartford, different concerns and priorities come into play.
“Preserving the crime scene is essential for successful prosecution,” said Chris Shoppmeyer, vice president for agency affairs for the Federal Law Enforcement Officers Association. “You wouldn’t necessarily want a photograph taken that could potentially compromise an investigation.”
He said press coverage could taint possible jurors and create a “trial by media.” For this reason, he said he does not think journalists should photograph evidence or anyone being interviewed by the police in relation to an investigation.
Along with prosecution concerns, Brown said officers often feel misportrayed and distorted in the media, and opt for a personal no-media policy. He said this can interfere with media trying to take pictures of officers on duty.
When journalists use video rather than still photography, different legal considerations can come into play.
If a video includes audio, then making a recording can — if done improperly — lead to charges of wiretapping, which is the crime of unlawfully intercepting a conversation. It is illegal in twelve states — California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington — to tape without the consent of both parties. All other states, and federal law, apply “one-party consent,” meaning only one participant in a conversation (which can be the person doing the recording) needs to know about the taping.
Because state laws vary, similar fact situations can produce different legal outcomes depending on the state.
In a recently popularized Maryland case, defendant Anthony Graber recorded his traffic stop for speeding. The video shows an out-of-uniform officer in an unmarked car hop out, yell, and wave a gun. After uploading the video to YouTube, Graber’s camera was seized and he was charged with a violation of state wiretapping law. The case was eventually dropped.
In a 2001 Massachusetts case, police cursed Michael Hyde at a traffic stop, where Hyde was not issued with a citation. Six days later Hyde filed a harassment complaint with a videotape of the incident as evidence, at which time he was charged with illegal taping. He was found guilty.
“The defendant was not prosecuted for making the recording; he was prosecuted for doing so secretly,” the Massachusetts Supreme Judicial Court said in refusing to overturn Hyde’s conviction. The court noted that Hyde could have avoided charges either by asking express consent to tape or just by holding his concealed video recorder in plain sight so that consent could be implied.
In his defense, Hyde compared his situation to the now-famous 1991 Rodney King police beating in California, which was caught on video by a passerby and became national news, sparking days of public rioting.
“Had they occurred in Massachusetts, under today’s ruling [the Rodney King videographer] would have been exposed to criminal indictment rather than lauded for exposing an injustice,” a dissenting justice wrote in the Hyde case.
What the experts say
Carey said the important thing for journalists is to be patient.
“I think it is very important to know your rights but also don’t become confrontational. Just ask for a supervisor or a police information officer or a fire information officer who are going to generally be more knowledgeable and helpful,” he said.
Student Press Law Center attorney Frank LoMonte added it is important to avoid standing directly in the path of foot traffic while police, firefighters or paramedics are trying to manage a volatile situation. It may be legitimate for police to order photojournalists to step back from a dangerous scene, but it is never legitimate for authorities to seize photos, LoMonte said, and journalists should attempt to negotiate for time to call an editor, news director or lawyer before complying with a demand to surrender a tape or memory card.
“Remember that the First Amendment does not protect your right to stand in a particular spot near where news is happening, and it definitely does not give journalists any special, superior right to be near a crime scene,” he said. “At the same time, authorities can’t uniquely single out journalists for discrimination. If you’re being told that only the media is excluded from a crime scene but the public is not, there’s a good chance the police are overstepping the law.”
By Caitlin Byrnes, SPLC staff writer