July 16th, 2014 by Mickey Osterreicher and tagged Access, Drones, FAA, first amendment, free speech, journalism, journalist, Legal, Mickey Osterreicher, national press photographers association, Newsgathering, NPPA, photographer, photography, photojournalism, sUAS
Today the NPPA filed comments with the FAA in support of petitions from a number of aerial photo and video production companies seeking exemptions to commercially operate small unmanned aerial systems (sUAS – 55lbs or less) for motion picture and television industry use. The NPPA also joined in the analysis submitted as part of the News Media Coalition’s Comments in Support of Video-Production Companies’ Petitions to the FAA for Section 333 Exemption. That Media Coalition includes: Advance Publications, Inc.; A.H. Belo Corp.; The Associated Press; Gannett Co., Inc.; Getty Images (US), Inc.; Gray Television, Inc.; NBCUniversal, Inc.; The New York Times Company; Scripps Media, Inc.; Sinclair Broadcast Group, Inc.; and WP Company LLC (d/b/a The Washington Post), represented by Charles D. Tobin and Christie N. Waltz of the Washington, DC law firm Holland & Knight, LLP. The additional comments by NPPA were submitted to reflect the specific concerns of our members and were drafted by NPPA General Counsel Mickey H. Osterreicher and Advocacy Chair Alicia Wagner Calzada, who is also an attorney with Haynes and Boone, LLP.
As noted, the NPPA has an acute interest in helping the FAA properly expedite the integration of sUAS into the National Airspace System (“NAS”). We also support exemptions by the FAA that would permit journalists, and in particular visual journalists, to use sUAS for newsgathering purposes. The NPPA reviewed the voluntary and self-imposed “limitations and conditions” proposed in the production companies’ petitions. And while they may be acceptable to those groups, we urged the FAA to decline to adopt or extend them as prerequisites for future exemptions or as future standards in its rulemaking. The NPPA acknowledged that some of those limitations and conditions might be acceptable, but expressed our concerns about others that we deemed to be impractical and which would impose an undue burden on sUAS use for newsgathering.
The NPPA continues to assert that sUAS use for newsgathering is not a “commercial use” and we expect to see tangible benefits if the current exemption requests are granted. Specifically, we would hope that NPPA will also be allowed to “facilitate” exemption petitions on behalf our membership in a similar manner to what has been achieved by the Motion Picture Association of America.
The NPPA also referenced in its comments and filed a copy of our paper written in support of sUAS for use in newsgathering, which also included results from a study we conducted on that subject.
Posted in drone, Drones, FAA, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, rulemaking, small unmanned aerial systems, sUAS | No Comments »
June 17th, 2014 by Wills Citty and tagged Access, Arrest, civil rights, first amendment, Fourth Amendment, free speech, law enforcement, Mickey Osterreicher, national press photographers association, NPPA, NYCLU, Phillip Datz, photographers, photography, Photography Is Not A Crime, photojournalism, photojournalist, police, police relations, public street, SCPD, settlement, Suffolk County Police Department
NPPA member Philip Datz today won a major settlement from the Suffolk County Police Department in a civil rights suit stemming from Datz’s arrest while filming law enforcement activity on a public street. Under the terms of the settlement, Suffolk County agreed to pay Datz $200,000, implement a new training program (including a training video), and create a Police-Media Relations Committee.
The NPPA, attorneys from the law firm of Davis Wright Tremaine (DWT) and the NYCLU worked with Datz, a freelance videographer, to file a federal lawsuit after Suffolk County prosecutors dropped charges resulting from his 2011 arrest. In July of 2011 Datz was filming police activity from a public sidewalk when Suffolk County Police Sergeant Michael Milton confronted him (VIDEO), demanding he leave the area immediately. Datz was wearing his press credentials at the time and was standing near several other onlookers, who were not asked to leave. Although no police lines had been established, Datz complied and then drove a block away. He was filming from there when Sergeant Milton came speeding up in his police cruiser, placed Datz under arrest for obstruction of governmental administration, and seized his camera and videotape.
Led by attorney Robert Balin, DWT filed suit on Datz’s behalf in 2012, claiming the unlawful arrest violated his First and Fourth Amendment rights as well as the Privacy Protection Act of 1980. Rather than take the case to trial, SCPD agreed to the settlement payment, and a series of relief measures aimed at educating its officers on the rights of the public and press to observe and record police activity. As part of these measures, SCPD officers will now be annually required to watch a training video explaining these rights. In addition, a newly created Police-Media Relations Committee consisting of representatives of SCPD and local media will be charged with promoting better relations between press and the police and will address complaints regarding police-media relations. Its membership will include a commanding officer in the SCPD, the executive officer of the SCPD’s Public Information Bureau, and members of local print and broadcast media outlets, as well as a freelance videographer or photographer. The SCPD also revised its rules to instruct officers that “members of the media cannot be restricted from entering and/or producing recorded media from areas that are open to the public, regardless of subject matter.”
“This settlement is a victory for the First Amendment and for the public good,” Datz said. “When police arrest journalists just for doing their job, it creates a chilling effect that jeopardizes everyone’s ability to stay informed about important news in their community. Journalists have a duty to cover what the police are doing, and the police should follow the law and respect the First Amendment to ensure they can do that.” Datz has also made a generous donation to the NPPA defense fund.
“We are delighted that Suffolk County has now joined other police departments, the U.S. Department of Justice and numerous courts across the country in recognizing that the public and press have a First Amendment right to photograph and record police officers performing their duties in a public place – a right that is essential to newsgathering and the free discussion of government affairs,” said Robert Balin. “This settlement is a huge victory not just for Phil Datz, but for all journalists and Suffolk County residents. The changes in policy and training agreed to by the County are major steps toward transforming the SCPD culture that led to this unfortunate incident. “The settlement is an encouraging sign in a climate where interference with and unlawful arrest of photographers has become commonplace.
“The National Press Photographers Association commends Suffolk County for working with Phil Datz and his counsel in order to turn a far too commonplace First Amendment violation into a constructive resolution of the case,” said Mickey H. Osterreicher, general counsel for the NPPA. “The real challenge now will be to ensure the ongoing training of SCPD officers in order for Suffolk County to be a positive role model for other law enforcement agencies. The NPPA is also extremely appreciative of the tenacious advocacy by Rob Balin, Alison Schary and Sam Bayard of the law firm of Davis Wright Tremaine who worked tirelessly on Phil’s behalf. And finally our thanks go to Phil Datz for not only having to endure the abridgment of his civil rights but for his willingness to stand up for his rights and the rights of others.”
The Suffolk County case is just the latest example of a lawsuit forcing local law enforcement to protect, rather than violate, the First Amendment. In March the Baltimore Police Department settled a case brought by the ACLU for a similar amount and also announced a new policy that prohibits officers from stopping people from taping or photographing police actions after officers destroyed a man’s personal, family videos because he taped a police incident, a case in which the U.S. Department of Justice filed a Statement of Interest affirming the right of both the public and the press to record police activities in public.
Also see: http://www.freedomtofilm.com/settlement.html for additional info and links to documents including letter of discipline and Internal Affairs report.
Posted in Access, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | 1 Comment »
June 16th, 2014 by Tyler Wilson and tagged Arrest, first amendment, free speech, photographers, recording, video
The constitutionally protected right to record police officers on duty in public places such as parks, which was affirmed in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), has been affirmed by the First Circuit to not only include parks and other traditional public places, but now even routine traffic stops.
In Glik, the plaintiff filmed several Boston police officers arresting a young man on the Boston Commons. The court in Glik held that the First Amendment protects the right of individuals to videotape police officers performing their duties in public, recognizing that it firmly establishes and protects “a range of conduct” surrounding the gathering and dissemination of information. Id. at 82.
The recently decided case of Gericke v Weare broadens this right to include routine traffic stops, concluding that a traffic stop does not extinguish an individual’s right to film. The main question that was presented in Gericke was whether a a routine traffic stop was a police duty carried out in public. The court said yes and compared Glik with Gericke, stating that “those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park. In both instances, the subject of filming is police carrying out their duties in public.” Id.
But the court recognized that there may be some limitations on this right because the circumstances of a traffic stop can potentially become dangerous to an officer, if for example in this case, firearms are present in the stopped vehicle. Such limitations may come into play when a police officer’s ability to perform his duties are actually impaired.
Reasonable restrictions, such as those of time, place, and manner, on the exercise of the right to film may be imposed when the circumstances justify them. See Glik, 655 F.3d at 84. A police officer can order filming to cease only when he/she can reasonably articulate that the filming itself is interfering, or is about to interfere, with his/her duties. Glik established that a reasonable officer cannot, consistently with the Constitution, prosecute citizens for violating wiretapping laws when they peacefully record a police officer performing his or her official duties in a public area.” Id. (emphasis added).
In Gericke, since there was a genuine factual dispute about whether the plaintiff had been disruptive, the court denied the officers’ motions for summary
judgment on the retaliatory prosecution claim stemming from the wiretapping charge. The First Amendment right to film police activity carried out in public,
including a traffic stop, necessarily remains unrestricted unless it is deemed to be disruptive.
**** Update: Shortly after the decision, the Town of Weare settled the lawsuit for $57,500
Posted in Boston Police, cell phone cameras, First Amendment, First Amendment rights, Glik v Cunniffe, Police, Recording, Recording Police, Simon Glik, Uncategorized, video cameras, violating | No Comments »
June 5th, 2014 by Tyler Wilson and tagged Access, credentialing, first amendment, free speech, journalism, journalist, national press photographers association, Newsgathering, NPPA, photographers, photography, photojournalism, Press Credentials
The Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society and the Journalist’s Resource project at Harvard’s Shorenstein Center on Media, Politics and Public Policy, in collaboration with a Media Credentialing Working Group composed of the National Press Photographers Association, the Digital Media Law Project, Journalist’s Resource, Free Press, the Investigative News Network, and the Nieman Journalism Lab have released a new report: Who Gets a Press Pass? Media Credentialing Practices in the United States.
Media credentials have long played a critical role in newsgathering in the United States, allowing journalists to gain special access to places and events denied to the general public. There are, however, many inconsistencies among regulatory standards for the issuance of credentials, and many circumstances where the decision of whether and how to issue credentials is left up to individual agencies with no regulatory guidance at all. Moreover, upheaval in the journalism industry has introduced new actors in the journalism ecosystem, complicating decisions by government agencies and private gatekeepers about who should be entitled to special access.
Who Gets a Press Pass? presents a first-of-its-kind analysis of this complex environment, exploring media credentialing practices in the United States through a nationwide survey of more than 1,300 newsgatherers.
“Media credentials represent one of the most important interactions between journalists and those who control access to events and information,” said Jeff Hermes, director of the Digital Media Law Project and an author of the report. “This study finds common threads that run through decisions by various types of organizations, as a starting point to make sense out of the vast array of credentialing practices in the United States.”
Survey respondents included a wide range of journalists across the country, from employed journalists at long-standing media organizations to independent bloggers and activists fulfilling the information needs of their communities.
“The findings here speak to the vital issue of ensuring that journalists of all kinds can bear witness to important events in our society,” said Shorenstein Center Director Alex S. Jones. “The ability of the press to operate freely, robustly and without interference is essential to an informed public. We must be vigilant in making sure that all organizations issuing press credentials exert the maximum effort to accommodate media members and enable the free flow of information.”
The survey asked about respondents’ experiences in seeking press credentials from federal, state, local, and private organizations from 2008 through 2013, revealing the following nationwide trends:
- One out of every five journalists surveyed who applied for a credential was denied at least once by a credentialing organization in the past five years. Although there may be reasonable grounds for denial in some cases, the data suggest systemic issues at many levels.
- Freelancers are more than twice as likely as employed journalists to be denied a credential at least once.
- Those identifying themselves as photographers are almost twice as likely as others to be denied a credential at least once.
- Those identifying themselves as activists are more than twice as likely as others to be denied a credential at least once.
“It is indeed unfortunate that photographers have been one of the groups singled out for denial by agencies issuing press credentials, but it also must be pointed out that one does not need a press credential to photograph and record in a public place. That said, widespread mistrust by police officers of the media (or anyone with a camera) continues to be reflected in the misguided belief that photography and recording in public places may be prohibited,” said NPPA general counsel Mickey H. Osterreicher, who helped formulate the survey.
It is the hope of the Working Group that this study will help newsgatherers to identify particular tensions in media credentialing practices and to work with credentialing agencies to resolve these tensions.
The report is available through the Digital Media Law Project’s website at http://www.dmlp.org/credentials and through the Journalist’s Resource website at http://journalistsresource.org/studies/society/news-media/who-gets-press-pass-credentialing.
Posted in Access, Cameras, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Press Credentials, Public Photography, Regulations limiting photography | No Comments »
June 2nd, 2014 by Tyler Wilson and tagged Access, amicus brief, Arrest, Austin Police Department, Buehler, Davis Wright Tremaine, first amendment, national press photographers association, Newsgathering, NPPA, police relations, video
The NPPA filed an Amicus Brief today in a federal civil rights lawsuit involving an Austin, Texas man, who says that police violated his constitutional right to photograph and/or film police in a public setting.
In his complaint Antonio Francis Buehler alleged that he was arrested on a number of occasions while recording Austin Police officers performing their official duties in public places. As a result of these incidents Buehler formed the Peaceful Streets Project, a group which routinely videotapes police officers in the city.
Buehler filed suit against the Austin Police Department and several police officers for violations of his civil rights. The defendants in the lawsuit then moved to dismiss the suit, and claimed “qualified immunity,” which protects government officials from being the subjects of lawsuits unless they have violated a clearly established constitutional right.
“The NPPA chose to file an amicus brief so early in this case because of the extraordinary and incredulous claim by the Austin Police Department that ‘the Fifth Circuit does not recognize photographing/videotaping police officers as a constitutional right,’” said NPPA Advocacy Chair Alicia Calzada.
The brief counters the police department’s argument that the “First Amendment right to videotape law enforcement is not a cognizable claim,” as being incorrect as a matter of law and also because it frames the issue far too narrowly. Rather, the constitutional right to film police officers while on duty has been well established for decades through numerous constitutional decisions that protect the “coextensive” rights of journalists and members of the public to gather information and to hold government officials accountable for their actions, as the First Circuit Court of Appeals held in the 2011 case of Glik v. Cunniffe. In Glik, a citizen was arrested after using his cell phone to photograph Boston police officers he believed were using excessive force in effectuating an arrest. After his charges were dismissed, Glik filed a civil action against the Boston Police Department and won because the First Circuit observed that a citizen’s right to film police officers on duty is a “basic, vital, and well-established liberty protected by the First Amendment.”
Several other cases have affirmed that the right to film police officers while on duty is clear and unambiguous, thus further weakening the Austin Police Department’s dubious claim. Most recently, the First Circuit reaffirmed this principle, denying qualified immunity in a case that involved videotaping police during a traffic stop in the case of Gericke v Begin. The court in Gericke explained that some constitutional principles are self-evident and do not need to have a case directly on point.
The United States Department of Justice (“DOJ”) has also affirmed this right in multiple Statements of Interest, explaining that over eighty years of precedent, going back to the 1931 case of Near v. Minnesota, stand for the proposition that “government action intended to prevent the dissemination of information critical of government officials, including police officers, constitutes an invalid prior restraint on the exercise of First Amendment rights.”
The law is also clear that these constitutional protections apply as much to individuals as they do the institutional press, something the NPPA has consistently noted. “NPPA has always fought to uphold the right to photograph and record in public for everyone,” said NPPA Generasl Counsel Mickey H. Osterreicher. “While the press may not have any greater right of access than the public, they have no less right either and the last thing we want is for the government to be the arbiter of who is entitled to ‘Free Speech’ or ‘Free Press’ First Amendment protection,” he added.
The amicus brief was drafted pro bono by attorneys Robert Corn-Revere, Ronald London, and Alison B. Schary, with the law firm of Davis Wright Tremaine, who have generously supported this and other NPPA efforts to promote and uphold the right to take pictures in public. Corn-Revere, London and Schary were recipients of the 2013 NPPA Kenneth P. McLaughlin Award of Merit for their efforts in support of the First Amendment.
Posted in Austin Police, Boston Police, cell phone cameras, Department of Justice, DOJ, First Amendment, First Amendment rights, Glik v Cunniffe, law, Lawsuit, Legal, Newsgathering, photographers, Photographers' Rights, photojournalism, Police, Recording, Recording Police, Simon Glik, Texas | 6 Comments »
May 27th, 2014 by Tyler Wilson and tagged copyright, copyright infringement, fair use, legislation, mass digitization, national press photographers association, NPPA, orphan works, photographers, photography, photojournalism, u.s. copyright office
Additional comments were filed by the National Press Photographers Association (NPPA) on May 20, 2014 on the issue of Orphan Works and Mass Digitization, as a follow-up to roundtable discussions held by the U.S. Copyright Office in Washington, DC on March 10-11, 2014. (See: http://www.copyright.gov/orphan/transcript/0310LOC.pdf and http://www.copyright.gov/orphan/transcript/0311LOC.pdf for transcripts of day 1 and 2 of those discussions).
The filing by NPPA supplemented additional post-roundtable comments submitted by the Digital Medial Licensing Association (PACA) on behalf of the Professional Photographers of America (PPA), the American Photographic Artists, Inc. (APA), the American Society Of Media Photographers (AMSP), the Graphic Artists Guild (GAG) as well as NPPA) in response to a Notice of Inquiry issued by the U.S. Copyright Office in February, 2014. These most recently submitted comments expanded on initial comments (submitted by NPPA to the Register on January 24, 2013).
The comments primarily responded to discussions at the round table from stakeholders who think that orphan works legislation is no longer necessary given their increased reliance on the doctrine of fair use. It is the position of the NPPA that, while the doctrine of fair use can be used as an affirmative defense, it is certainly is not broadly available to allow the use of photos without permission, credit or compensation. “This one size fits all approach appears to be what is turning Title 17 law on its head with copyright now becoming the exception to fair use. Rather than conducting a proper balancing of the four fair use factors, a number of courts have made such ruling once they determine that a use is transformative. NPPA asserts that this type of analysis was never intended to be applied as the sole determinative element in making a fair use ruling in an individual copyright infringement case, let alone in one involving mass digitization of millions of works,” wrote NPPA general counsel Mickey H. Osterreicher and advocacy committee chair Alicia Wagner Calzada (who is also an attorney) in their jointly drafted comments.
The problem of social media websites automatically stripping out any and all identifying metadata when images are uploaded to their sites, thus creating instant orphans of contemporary work, is also “an issue that needs to be addressed more seriously and, once properly resolved, would help rectify most of the orphan works concerns expressed by users,” the NPPA comments concluded.
Posted in copyright, copyright infringement, National Press Photographers Association, NPPA, Orphan Works, photographers, photojournalism, U.S. Copyright Office | 3 Comments »
May 7th, 2014 by Wills Citty and tagged Association for Unmanned Vehicle Systems International, AUVSI, FAA, Federal Aviation Administration, Holland & Knight, National Transportation Safety Board, Newsgathering, NTSB, Raphael Parker, Trappy, UAS, unmanned aerial systems
The NPPA and a coalition of media organizations have joined to file a legal brief in a case that may help shape the future of the use of unmanned aerial systems (“UAS”) by journalists nationwide. The brief, filed by the law firm Holland & Knight on behalf of the NPPA and 13 other media organizations, argues in favor of a UAS pilot fined by the FAA for flying a model plane fitted with a camera around the University of Virginia in 2011.
A judge overturned the fine against Raphael “Trappy” Parker in March, but the FAA appealed that decision. The National Transportation Safety Board will review the holding in the coming weeks. The approaching NTSB review will focus, in part, on whether the FAA’s current ban on the unlicensed commercial use of small UAS exceeds its administrative authority.
The amicus brief argues that the FAA’s current policy is overly broad, and improperly fails to draw a distinction between commercial uses and “the use of UAS technology for the First Amendment-protected purpose of gathering and disseminating news and information.” The brief contends that lagging administrative proceedings to update the rules and minimal efforts to grant licenses to private parties have combined with current policies to essentially ban civilian use of UAS.
NPPA General Cousel Mickey Osterreicher said the blanket ban improperly burdens journalists.
“With the advent of smaller and more advanced aerial platforms which are simple to operate and inexpensive to purchase, it is logical that innovative visual journalists [would] seek to report the news by using these devices to capture images with which to better inform the public,” Osterreicher said. Osterreicher pointed to aerial photographs of the aftermath of the recent building explosion in Harlem as an important example of this type of publicly beneficial use.
The Supreme Court has repeatedly reaffirmed the idea that the First Amendment extends some protection to newsgathering activities. By incorrectly deeming media organization’s use of UAS as a commercial activity, rather than a newsgathering application, current policies undermine significant constitutional concerns. “Contrary to the FAA’s complete shutdown of an entirely new means to gather the news, the remainder of the federal government . . . has recognized that, in the eyes of the law, journalism is not like other business,” the brief asserts.
The particular utility of UAS for newsgathering purposes reinforces the First Amendment interests at stake. A recent NPPA survey canvased approximately 50 news organizations and media associations to determine how small UAS could help journalists do their jobs. The survey revealed UAS could aid in the reporting of newsworthy events such as natural disasters, accidents, and adverse weather conditions, where safety concerns or other restrictions might otherwise limit coverage.
Even strong proponents of UAS concede that increased use might present some dangers, especially in highly populated areas. However, the brief argued, “the News Media Amici and the government can address legitimate safety concerns while protecting First Amendment rights and providing the public with enhanced access to important information.” The government’s delay in promulgating a formal rulemaking process to consider the balancing of these interests is a central basis for the challenge to current policy.
The brief also argued that privacy concerns arising from media organizations’ use of UAS could be addressed by existing laws, and that forward looking policy determinations regarding privacy should be “based on a discussion among policy makers, privacy advocates, and industry.”
The other problem with the FAA’s current policy is that it was arguably adopted without proper administrative procedures. When an agency seeks to establish enforceable rules or regulations, as it did here, it must meet certain legal requirements. The lack of proper procedure is compounded by an absence of clarity in the policy itself, leading to outcomes that depart from legal norms, such as the regulation of model airplanes under general federal aviation regulations.
The current state of the law on UAS use for newsgathering purposes demands swift action from the FAA, Osterreicher concluded:
“It is incumbent that the FAA chart a pragmatic and expedited course in its administrative rulemaking. There is neither room nor time for complacency or hubris in addressing this matter, lest, flying too low or too high it end up failing like Icarus in an attempt to rule the sky.”
Osterreicher will present the NPPA study and paper on UAS at a meeting of the Association for Unmanned Vehicle Systems International in Orlando next week. The FAA’s “roadmap” for integrating civilian UAS usage is available here.
Posted in Access, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | 4 Comments »