October 31st, 2011 by Mickey Osterreicher
On Monday, October 31, 2011 NPPA general counsel, Mickey H. Osterreicher, sent a letterÂ to the Hon. Irvin B. Nathan, Attorney General for the District of Columbia. The letter dealt with Police Regulations for the District of Columbia that affect photographers. In it referred to Article 31, Chapter 24, Â§Â§ 521 â€“ 523, respectively entitled â€œStreet Photography: Business Licenses,â€ â€œStreet Photography: Individual Photographersâ€ and â€œStreet Photography: Requirements and Restrictions.â€ Of concern to the NPPA is the vague and overly broad language contained in these regulations that may be open to misinterpretation and abuse of discretion by police in their enforcement.
Specifically, Â§24-521.1, states â€œNo person, firm, or corporation shall engage in the business of taking photographs of any person or persons upon the streets, sidewalks, or other public spaces of the District of Columbia, for profit or gain, without first having obtained a license to do so from the Mayor (emphasis added). Â Section 24-522.1, states â€œNo individual not licensed under Â§521 shall take a photograph of any person or persons, for either direct or indirect profit or gain, upon any of the streets, sidewalks, or other public spaces of the District of Columbia persons, without first having obtained a license to do so from the Mayor as provided in this sectionâ€ (emphasis added). Additionally, Â§24-523.3 states â€œWhile engaged in taking photographs, no person licensed under Â§521 or Â§522 of this chapter shall impede traffic as defined in the District of Columbia Traffic Acts; nor shall any photographer remain longer than five (5) minutes at any one (1) location on the streets, sidewalks, or other public spacesâ€ (emphasis added).
In the letter Osterreicher asserted that â€œthese three vague and incrementally overly broad sections taken together could be interpreted to mean that any photographer taking a photograph of anything, be it a building, person or inanimate object for longer than five (5) minutes would be in violation of the regulations and subject to fine or arrest.â€ â€œWe contend that this licensing scheme, based upon regulations that are facially inconsistent with the protections provided under the First Amendment, is unconstitutional,â€ he added.
Osterreicher went on to say that â€œthese facially defective regulations will only further contribute to the erroneous belief by law enforcement that public photography may be arbitrarily limited or curtailed.â€ He requested that these regulations be repealed immediately and in the alternative proposed to work with Attorney General Nathan â€œto draft revised language that would be more narrowly tailored to serve a substantial government interest as a reasonable time, place and manner restriction on commercial photography.â€
The NPPA is concerned, given the recent penchant for police to interfere with, harass and in many cases arrest photographers, that these infringing regulations would provide the police with unbridled discretion to abridge the rights of photographers covering such events as â€œOccupy Wall Streetâ€ or any situation involving â€œphotography of any person(s)â€ or lasting longer than five (5) minutes in any one location.
It is believed that these regulations were put in place to regulate photographers who (acting as something like to commercial street vendors) take photographs of others on a public street and then attempt to sell prints or copies to the subjects of those photos. None of the regulations actually define the term â€œstreet photography,â€ which has a more common definition as â€œa type of documentary photographyâ€ practiced by such world renowned photographers/photojournalists as Henri Cartier-Bresson, Alfred Eisenstaedt and Robert Frank to name a few.
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