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NPPA Voices Strong Objections to Congressional Incident in Cincinnati

August 25th, 2011 by Mickey Osterreicher

NPPA has written strong letters of objection to both U.S. Rep. Steve Chabot (R-Ohio)  and the Cincinnati Police Chief after video cameras belonging to citizens were seized by a police officer acting upon orders from the congressman’s aides.

The incident occurred on August 22, 2011 while Chabot was speaking to the public at a town hall meeting. According to press reports, Chabot spokesman Jamie Schwartz admitted that “he had a Cincinnati police officer confiscate the cameras ‘to protect the privacy of constituents.’”

Think Progress also reported that signs were posted on doors at the NorthAvondale Recreation Center that read: “For Security Purposes, Cameras Are NOT Permitted.”  Video posted on Carlos Miller’s website shows clips of the incident. At least two photographers recording with broadcast quality cameras can be seen in the video although they were not interefered with.

What is most disconcerting is that Congressman Chabot sits on the U.S. House of Representatives Commitee on the Judiciary which deals with these very issues and has supported legislation permitting “the photographing, electronic recording, broadcasting, or televising to the public of [federal] court proceedings. In seeking “a complete and immediate apology” by the congressman for this  “blatant constitutional transgression” the NPPA letter also wrote that “posting signs banning cameras ‘for security purposes’ does not supersede the constitutional rights of citizens.”

Reaction to the incident has been extremely negative and widespread with hundreds of comments posted on YouTube, Congressman Chabot’s Facebook wall and sent to his congresssional website page. This appears to be exactly the embarrassing outcome that aides had intented to avoid. Schwartz also is reported to have said that the cameras confiscated “from David Little and Liz Ping, who were given the cameras back at the end of the meeting.”

The NPPA letter to Cincinnati Police Chief James E. Craig stated that “whether the officer acted at the request of the congressman or his staff or of his own volition exhibits a total lack of understanding and/or disregard for the constitutional protections afforded those he is sworn to serve and protect. Law enforcement agencies are established to uphold and enforce laws in a professional manner, part of which is to exercise good judgment. I believe that your officer abused that discretion by his actions.” The letter also went on to state that “if your department’s vision is to be ‘recognized as the standard of excellence in policing’ by ‘the delivery of fair and impartial police services while maintaining an atmosphere of respect for human dignity;’ then we would respectfully request that you maintain your ‘integrity,’ ‘professionalism,’ and ‘accountability’ by upholding your ‘obligations to the department and community’ and reinstate ‘public trust’ by a full and impartial investigation of this incident.” The letter concluded by a “request that your department immediately issue orders directing officers to cease such activity and also that your department implement revised training for all officers regarding these matters.”

Another town hall meeting is scheduled for August 29, 2011. Schwartz assured reporters that “no cameras would be seized at” that meeting.

Read more: http://www.upi.com/Top_News/US/2011/08/24/Video-cameras-confiscated-at-town-hall/UPI-46281314241497/#ixzz1W3ygwoJo

 and http://www.pixiq.com/article/ohio-congressman-bans-cameras-from-town-hall-meeting

Posted in Access, Cameras, cincinnati police, condemned, confiscated, congressman, ethics, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, law, Legal, mass media, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, Police, Politics, Public Photography, Search and Seizure, steve chabot, Town Hall Meeting, video cameras, violating | No Comments »

Seventh Circuit Rules: States May Restrict Broadcasting of Publicly Sponsored Sporting Events

August 25th, 2011 by Alicia Calzada and tagged , , , , , , , , , , ,

In a long awaited ruling, the Seventh Circuit on Wednesday held that the Wisconsin Interscholastic Athletic Association (WIAA) was within its rights to grant exclusive broadcast rights to a private commercial vendor and to charge news organizations a fee for the right to broadcast games. The court held that such arrangements do not run afoul of the First Amendment.

Addressing only the issue of the broadcasting of the entire event, the court held that a sporting event was a “performance” and the right to broadcast an event in it’s entirety is a proprietary right that a governmental entity may exercise. The case, WIAA v. Gannett began when The Appleton Post-Crescent, a Gannett newspaper, broadcasted several state championship football games online in their entirety, believing that it was within their First Amendment right to do so. The WIAA sued.

The court first rejected the notion that this case was a copyright case and then proceeded to make intellectual property analogies to the sporting events, repeatedly calling the sporting events “performances,” (performances are protected by copyright) and comparing sporting events to concerts, plays and patents, all of which have protectable intellectual property elements. No court has ever held that a sporting event is a copyrightable performance, and this court did not either. A sporting event is not a work of authorship like a concert or a play. While the court fell short of explicitly holding that a sporting event has intellectual property rights, it basically upheld the assertion of intellectual-property-like rights by the WIAA (while insisting that no intellectual property rights were involved). The underlying basis for the court’s holding was the Supreme Court case of Zacchini v. Scripps-Howard, which held that a television station misappropriated the property of a human cannonball performer by broadcasting the performance in its entirety.

A bright spot in the ruling is that the Seventh Circuit rejected the lower court’s finding that sports reporting deserves less First Amendment protection than political reporting, and held that “[t]here is no basis for a rule that makes the press’s right to coverage depend on the purported value of the object of their coverage.” This is a win for the First Amendment.

Importantly, the ruling is limited to the single issue of whether or not the media has a First Amendment right to broadcast an entire event sponsored by a state actor. But the reasoning is broad enough to be interpreted to support a multitude of restrictions. For example, within the restrictions imposed by the WIAA under the exclusive broadcast agreement, news organizations don’t have a right to “live blog” the events. The court took no issue with that aspect of the exclusive agreement, leaving the live blog restrictions in tact.

The court specifically didn’t address issues in the conflict related to still photography, such as reprint sale restrictions, because they were not raised by the parties on appeal.

It will not be surprising if this case is followed by further restrictions on coverage of government events. The fear is that municipalities and sports associations alike may interpret this ruling to mean that a city can sponsor a public event and then restrict who may broadcast the event. This ruling could extend to restrictions on broadcasting parades, marathons, and city-sponsored festivals. Several years ago a Los Angeles District Court ruled that the city could not grant exclusive rights to an “official” television station.

The result is a disappointment to the NPPA, which joined several other news organizations in filing an amicus brief in support of the newspaper  last year.

The entire Seventh Circuit ruling can be found here: WIAA v. Gannett Seventh Circuit Opinion, No. 10-2627

An extensive legal article that I wrote on the issue can be found here:

An earlier NPPA article on the conflict can be found here.

Posted in Access, blogging, broadcasting, copyright, Federal Court, First Amendment, Legal, News Photography, photojournalism, students | No Comments »

NPPA Letter and Outreach to Miami Beach PD Instrumental in Creation of Written Policy in Wake of Memorial Day Incident

August 6th, 2011 by Mickey Osterreicher

Earlier this week the Miami Beach Police Department issued an order affirming strong protections for the rights of the media and the general public regarding photography. The new order codifies a ban on warrantless search and seizure of journalists’ cameras, unless the journalist was involved in the crime or under arrest.

General Order 11-03 sets forth new guidelines and procedures governing the “investigation, seizure and searching of portable video and photo recording devices . . . .” This written policy came about in the aftermath of the fatal shooting of Raymond Herisse by Miami Beach police on Memorial Day 2011. That incident was recorded by a citizen, Narces Benoit, on his cell phone and later broadcast by CNN (and viewed on YouTube) despite alleged attempts by police officers to destroy the phone and confiscate the recording. Police also seized the camera of  a WPLG photojournalist ( at 2 minutes into video).  

After being made aware of the situation NPPA issued a letter to Miami Beach Police Chief, Carlos Noriega, objecting to the actions of his officers in violation of the Fourth Amendment protection against unreasonable search and seizure. The letter also offered “to help develop reasonable and workable policies and practices in order to avoid similar situations.”

Shortly thereafter Sergeant Jed Burger with the Technical Services Division, Professional Standards Unit of the Miami Beach Police Department contacted NPPA.  Sgt. Burger requested information, policies, procedures and recommendations from NPPA in order to help with the “development of reasonable and workable policies and practices concerning the preservation and collection of video and photographs between photo journalists, civilians and law enforcement personnel.”  The dergeant was sent copies of the Amtrak Police General Order which was drafted with NPPA input as well as copies of the NYPD Patrol Guide and General Orders dealing with these issues. 

Less than 2 months later, in a five page document, the Miami Beach Police recognized “that the taking of photographs and/or videos by private citizens and media personnel is permitted within areas open to general public access and occupancy.” The new policy also states at the outset that “a civilian may video record or photograph a police employee’s activities as long as they: remain at a reasonable distance; do not interfere with the employee’s [police officer’s] duties and responsibilities; and do not create a safety concern for the employee [police officer], person detained, or other persons.” While those three exceptions might create “wiggle-room” for some officers to still interfere with someone taking photos/videos – the supervisory requirements in any such incident will hopefully guarantee better adherence to the guidelines. 

Under the guidelines, the seizure of cameras or media storage (such as video tapes or compact flash cards) without the consent of the photographer, is only allowed when an officer has probable cause to believe that 1) there is evidence of a criminal act on the device and 2) there is so-called “exigent circumstances” such as a likelihood of “the imminent destruction of evidence”. The two requirements that must be satisfied for this exigency to exist are: “probable cause to believe destructible evidence exists” and “reason to believe the evidence might be destroyed if they delay taking action until a subpoena/search warrant is issued.” There also must be supervisory notification and oversight in all such (consensual and non-consensual) situations. Even stricter guidelines come into place when a member of the media is involved.

The policy also distinguishes between sworn and non-sworn employees (“who are prohibited from seizing a person’s portable video and photo recording devices”) and also between consensual and non-consensual search and seizure of such equipment and devices. Following closely on the language of Amtrak and NYPD prohibitions, Miami Beach personnel “shall not order or participate in the destruction of portable video and photo recording devices” or “in the erasure, deletion or destruction of digital, analog or film evidence.” The policy states that “employees shall not impede a person’s right to photograph or video record an event unless that person’s actions: endanger the safety of the public, employees, or property; interfere with an active crime scene; or create a reasonable safety concern.” Once again, these exceptions might be seen as too vague but as with any such rule – police will always be allowed some discretion. 

It is important to note that the policy language pertaining to media and non-media photographers and videographers differs slightly in that for non-media “no search of the device shall be conducted until a subpoena/search warrant is issued unless there is reason to believe that the immediate search of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.” Whereas “sworn employees shall not seize portable video and photo recording devices from media personnel unless they are under arrest or otherwise directly involved in the criminal act.” Additionally, “a warrantless search of portable video and/or photo recording devices seized incident to the direct involvement or arrest of media personnel is prohibited unless there is reason to believe that the immediate search of such materials is necessary to prevent the death of, or serious bodily injury to, a human being” (emphasis added). 

Finally, the policy directs employees to the statutory limitations and liability pursuant to the Privacy Protection Act of 1980, 42 U.S.C. Section 2000aa, whereby “it is unlawful for a sworn officer or employee, in connection with an investigation or prosecution of a criminal offense, to search for or seize the work product of a media photographer/videographer, unless: there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being; or there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” The policy also puts in place the right to sue department employees who violates the policy, noting that “sworn officers and employees may be held personally liable in an action for civil damages for violation of federal statute, 42 U.S.C. Section 2000aa-6.” and “a search or seizure of the work product is prohibited when the offense is merely the withholding of such material.”

Under the federal statute, “notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication . . .” 42 U.S.C. § 2000aa(a).

Accordingly, the law authorizes civil actions by aggrieved persons for violations of the Act and provides for the recovery of “actual damages but not less than liquidated damages of $1,000, and such reasonable attorneys’ fees and other litigation costs reasonably incurred as the court, in its discretion, may award.” 

While NPPA is pleased to see that MBPD has issued new guidelines dealing with photography and has said so in a follow-up letter to the chief; the real challenge will be in the ongoing education and training of its officers. As today’s letter also states it is  “critical that when violations of this policy occur – they are quickly and thoroughly investigated by the department –and employee(s) found to have violated departmental policy be properly disciplined and criminally charged if necessary.”

Posted in Access, Exigent Circumstances, First Amendment, Florida, Fourth Amendment, law, Legal, News Photography, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Search and Seizure | No Comments »

DC Taxicab Commission Adjusts Open Meetings Policy- Expressly Permits Recording

August 4th, 2011 by Alicia Calzada and tagged , , , , , , , ,

Five weeks after the NPPA sent letters to the D.C. Taxicab Commission, and U.S. Parks Police protesting an incident in which two journalists were arrested for taking pictures and recording a public meeting, the Commission reports that it has revised its policy on public attendance, photography and recording at meetings.

The new policy states, in part,

A member of the public, including any representative of the media, may record or photograph the proceedings of the Commission at an open meeting by means of a tape recorder or any other recording device so long as the person does not impede the orderly conduct of the meeting, by, for instance, creating excessive noise that impairs the ability of others to hear the proceeding or using excessively bright artificial light.

The Interim Chairwoman of the  taxicab commission, Dena Reed,  notified the NPPA of the change in a letter this week. Reed was quoted in June in a Washington Post article as stating that the commission had banned videotaping of its proceedings because it was disruptive.

Useful links:

The entire “Open Meetings Policy and Protocol,” can be found on the DC Taxicab Commissions website at this link.

NPPA’s Letter to the Taxicab Commission

Washington Post article about the incident.

Second Washington Post article about the incident and copy of a statement by Reed after the incident.

Carlos Miller’s article and video regarding the original incident.

Posted in Access, blogging, First Amendment, Legal, photographers, Photographers' Rights, photojournalism | No Comments »