College campuses and their surrounding neighborhoods regularly are the scene of mass public gatherings, some celebratory and some enraged, some planned and some spontaneous. When police engage in crowd control, journalists – especially students, who may be unrecognized by police officers – often find themselves rounded up and jailed along with the participants they’re covering.
It happened to student videographer Cameron Burns when police swept him up along with protesters marching in opposition to California tuition increases, it happened to college journalists Judy Kim and Alisen Redmond as they photographed “Occupy Atlanta” demonstrators in 2011, and it happened to student photojournalists Desiree Mathurin and Sam Bearzi while covering citizen protests against police violence in New York City. In each case, the journalists endured an uncomfortably long jail stay and had to fight criminal charges just for getting close to the action they were covering – as journalists are trained to do.
At the University of Missouri, student videographers Tim Tai and Mark Schierbecker found themselves unexpectedly at the center of a national news story when demonstrators demanded that they stop recording in a publicly viewable location on the campus quad – and university employees supporting the protesters escalated the confrontation nearly to the point of violence.
Knowing the law – and how to assert it diplomatically – can help photojournalists and videographers stay out of trouble with law enforcement, or at least minimize the harm if a confrontation occurs.
Your rights can vary depending on where you are standing. If you are standing on a sidewalk, the lawn of a park or a comparable piece of public property that is open to foot traffic, then you have a right to photograph and videotape anything you can see from that vantage point. You cannot be charged with an offense as long as you are not unduly obstructing other pedestrians. But being a journalist is not a license to jaywalk, trespass on private property, block automobile traffic or otherwise violate laws that apply to everyone else.
There is no “right not to be photographed” in a space that is visible to public foot traffic, even in the event of a medical emergency. That includes minors; children do not have any heightened privacy rights in their outward appearance in 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 civil claim that can be brought by way of a lawsuit.
Police never have authority to destroy images or order a photojournalist to do so. Photos are personal property (or property of the employer), and destroying them can lead to both criminal prosecution and financial liability – law enforcement officers have been successfully sued for wrongful destruction of property for erasing memory cards. If police believe that images were taken in a place where the journalist should not have been standing, the lawful response is to issue a citation for trespassing, not to destroy the pictures.
The fact that a piece of property is privately owned does not automatically mean no photography 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 there is no “reasonable expectation of privacy” there, and a person photographed against his will has no claim for invasion of privacy. A photographer who is asked to stop shooting, or to leave the premises, by an employee of the business should comply, but a customer cannot “order” a journalist to stop recording.
The Privacy Protection Act 42 U.S. Code § 2000aa, is a federal statute that prohibits police from searching private spaces where journalists store their work. Under the PPA, an officer who wants to look into a journalist’s car trunk, briefcase or other storage area to inspect the journalist’s work product must get a court order after a hearing at which the journalist is represented. While the law was enacted specifically to prevent searches of newsrooms, its wording is broad enough to apply to any space where unpublished work is kept, including the hard drive of a laptop or the memory of a camera.
The Fourth Amendment also provides all citizens, including journalists, with protection against excessively invasive searches of their cellphones when stopped by police. Police cannot “go fishing” for speculative evidence of crimes in the memory of a cellphone, which might contain a journalist’s notes or messages from confidential sources. As the Supreme Court observed in a recent Fourth Amendment case involving the search of a phone: “One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.” Journalists who believe their cameras or phones are about to be searched should clearly identify themselves as working members of the news media and invoke both the PPA and the Fourth Amendment.
A handful of states have outdated “wiretapping” statutes that can apply to recorded face-to-face conversations (as opposed to intercepted phone calls, what most people think of as “wiretapping”). But those statutes cannot be applied to criminalize recording a public event where there is no “expectation of privacy.” In recent years, two federal appeals courts – in Illinois and Massachusetts– have said there is a constitutionally protected right to videotape police doing official business in public.
There is 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 photographers who were merely filming outside of quote-unquote “sensitive” federal buildings. Anything visible from the naked eye from a public vantage point – even the headquarters 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 created by your publication. Make contact with officers when you arrive at the scene to identify yourself as a journalist.
- Never escalate a confrontation by laying hands on a police officer, physically resisting the seizure of your camera or directly disobeying an order; a calm and respectful counter-argument is much more likely to succeed than a defiant one.
- Upload photos regularly if your camera 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.
- Consider buying disposable phones to cover the event. If confiscated, you will not lose professional and personal contacts. In any event, back-up your device first. Turn off your phone’s fingerprint scanner when covering protests and refuse to give your password. Memorize or write important phone numbers on your arm in Sharpie. Have numbers of people you’ll call in an emergency, including several editors’ cell phones. Carry quarters in 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 to reclaim an item at the jail that’s been taken from you.
- Call someone trusted (editor, advisers, parent, spouse) the moment that it appears you’re about to get arrested, because it may be hours before you can get access to a phone if you’re jailed. Use Twitter and other publicly accessible channels to get the word out widely so people will know where to look for you. If a confrontation appears inevitable, consider starting a livestream. You risk sharing unblurred images of protest participants and bystanders, which could potentially endanger them.
- Gather all the information you can about your arrest — record or videotape the arrest if you can, make sure you know which police agency made the arrest and, if possible, get the names of all officers involved and of any witnesses.
- Ask for legal representation if you are being interrogated while at 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, because that means you are agreeing to admit what you’re charged with and waive a court appearance.
- Demand a court appearance if you have been held for more than 24 hours without being taken before a judge or magistrate.
Download a PDF version of SPLC’s tips to avoid confrontations while covering protests here.