Search

Ninth Circuit: Photojournalist’s Access is a “Fundamental Constitutional Right”

February 16th, 2012 by Alicia Calzada and tagged , , , , , , , , , , , ,

In another victory for photographers, the NPPA is applauding a decision by the U.S. Court of Appeals for the Ninth Circuit which held that restrictions on a photojournalists’ access to a horse roundup by a federal agency may have violated her First Amendment rights. The appellate court stopped short of ruling that her rights were violated, but remanded the case to a lower court to reconsider the question based on a specific analysis.

In the fall of 2010, photojournalist Laura Leigh set out to cover a wild horse round-up, conducted by the Bureau of Land Management (BLM) for the purposes of population control.  According to the ruling, while Leigh was covering the round-up, severe restrictions were imposed on her — she was escorted by armed guards and directed to stand in an area in which her view was obstructed. From the location she was forced to stand in, she was unable to observe or photograph the horses being moved or sorted and was unable to view whether or not the horses were injured. Leigh was also prohibited from standing in certain areas even though other members of the public were permitted in those areas.

Leigh attempted to get an injunction and restraining order to provide her with unrestricted access but that request was denied by a federal court. The appellate court reversed the denial, holding that “courts have a duty to conduct a thorough and searching review of any attempt to restrict public access.”

The ruling in Leigh vs. Salazar ordered the lower court to engage in a proper inquiry. Appellate courts generally do not make factual findings and the question of whether Leigh’s rights were violated is very fact specific and required more detailed information than was available to the appellate court.

The court called the photographer’s access to take pictures a “fundamental constitutional right, which serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self government.” When there is a right of access, the government may only overcome that right by “demonstrating an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” The National Press Photographers Association and the Reporter’s Committee for Freedom of the Press had filed an amicus brief in support of the photographer after the case was brought to our attention.

Quoting founding father James Madison, the court noted that:

“a popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”
9 WRITINGS OF JAMES MADISON 103 (G. Hunt ed. 1910)

Read the entire Ninth Circuit decision here: Decision021412 (PDF)

Posted in Access, Cameras, Federal Court, First Amendment, First Amendment rights, Legal, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism, Regulations limiting photography, Street Photography | 38 Comments »



38 Responses to “Ninth Circuit: Photojournalist’s Access is a “Fundamental Constitutional Right””

  1.   Fritz Koenig Says:

    Regarding Leigh vs. Salazar:

    I am surprised by Alicia Calzada’s statement distributed by the NPPA that, “The court called the photographer’s access to take pictures a “fundamental constitutional right, which serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of selfgovernment.” ”

    The court made no such statement.

    The appeal court merely said that the lower court did not even begin to conduct a proper First Amendment Analysis as per Press-Enterprise II. Further, it explained that one element of a Press-Enterprise II analysis is whether the public has a right of access (page 1783, paragraph 2), and it explicitly states that the question requires more evidentiary development because the record does not provide enough evidence for the appeal court to conduct the analysis.

    The appeal court said, “Accordingly, we remand this case for the district court to consider in the first instance whether the public has a First Amendment right of access to horse gathers,”

    Thus the appeal court did not decide that the public has a First Amendment right of access much less Alicia Calzada’s very specific claim that “…the photographer’s access [specifically, Plaintiff-Appellant Laura Leigh] to take pictures a “fundamental constitutional right…”

    Hopefully, the lower court can now by coaxed into a declaration of a fundamental right of access to photograph, as opposed to merely the right of access, which will shift the burden of proof upon the government to show that denial of photography in a particular case is warranted.

  2.   Alicia Calzada Says:

    Hi Fritz,

    Thanks for writing. I see your concern, but the opinion stated that courts have a duty to analyze whether the government had violated “this fundamental constitutional right.” The court did not say that there is a duty to analyze ANY constitutional right, rather they said the court had a duty to analyze THIS constitutional right. The way I read it, “This” clearly modifies “Leigh’s First Amendment claim” aka photographic access to the horse round-up.

    I see your concern about the fact that the lower court was ordered to analyze whether or not there was a First Amendment right to such access, but the court clearly stated what I wrote above. One of the problems with the lower court ruling was that the “district court did not consider whether horse gathers have traditionally been open to the public, whether public access plays a positive role in the functioning of horse gathers, whether the BLM has demonstrated an overriding interest in the viewing restrictions, or whether the restrictions are narrowly tailored to serve that interest.” This “narrowly tailored” standard of review is applied when a fundamental right is at issue. The First Amendment is a fundamental right and the photography access restrictions are subject to this kind of strict scrutiny because they are a First Amendment right.

  3.   Fritz Koenig Says:

    The word “fundamental” appears only one place in the opinion on page 1771, in the phrase you quote “this fundamental constitutional right”. I presume it is that location to which Calzada refers.

    “Right of access” is the right which is the subject of the sentence immediately preceding the sentence containing the phrase “this fundamental constitutional right”. Specifically, the 9th opinion said, “the district court erred by failing to apply the well-established qualified right of access balancing test set forth in Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”)”.

    Thus, “right of access” is framed in the context of Press-Enterprise II. Photography was not discussed in Press-Enterprise II. Merely “access” was considered by Press-Enterprise II, it did not cover what tools a reporter could bring into court, e.g. cameras and audio recorders vs. notepads. Thus, the *right to photograph* courtroom proceedings was not decided by Press-Enterprise II.

    Likewise, the “this” of “this fundamental constitutional right” on page 1771 is not referring to “the photographer’s access to take pictures”, it only refers to the broader “right to access” and leaves to the lower court to decide a) whether access is appropriate in this case, a b) if access is allowed at all, what restrictions may be applied to that access.

    A review of the post-opinion comments of one of Leigh’s attorneys, Gordon Cowan, reveals him to say, “a court *suggests* that she holds a fundamental right to see and report on government activity ” and, “The court, particularly Judges Smith, Noonan and Wallace, are the heroes who accepted the message and *crafted a path of correction*, not just for Ms. Leigh, but for the press and journalists like her.”

    “Suggests she holds a fundamental right” and “crafted a path of correction” are phrases Cowan uses to describe a opinion that has left final determinations of whether Leigh herself holds a “fundamental right” to the lower court to *declare* or not after they do their homework.

    The most clear significance of the opinion is that when it comes to First Amendment analysis, the 9th does not suffer lazy students or District Courts.

  4.   Laura Leigh Says:

    NPPA signed on in Amicus with RCFP. I’m surprised you didn’t know.

  5.   elijah ellis Says:

    Great news, well written, but leaves me wanting to know more about what happened and when we will get to see her pictures. Off to google this photographer.

  6.   Alicia Calzada Says:

    Hi Laura, It is mentioned at the end of the last full paragraph. Please keep us up to date with your case.

  7.   Mickey Osterreicher Says:

    Thank you.

  8.   Graham Edu Says:

    I precisely wished to thank you really significantly yet once more. I am not confident the items that I may possibly have accomplished without the type of creative concepts discussed by you directly on such region. It seemed to be a really challenging dilemma for me, but coming across a specialised approach you managed that took me to weep with gladness. Now i

  9.   Delma Ancic Says:

    Gaming pc

  10.   Gretta Sandling Says:

    As soon as I noticed this web site I went on reddit to share some of the love with them.

  11.   Rachelle Smigiel Says:

    I have read some good stuff here. Definitely worth bookmarking for revisiting. I surprise how much effort you put to make such a wonderful informative site.

  12.   Carmella Gather Says:

    Hands down, Apple’s app store wins by a mile. It’s a huge selection of all sorts of apps vs a rather sad selection of a handful for Zune. Microsoft has plans, especially in the realm of games, but I’m not sure I’d want to bet on the future if this aspect is important to you. The iPod is a much better choice in that case.

  13.   Gregg Nale Says:

    Bonos charity The One Foundation raised 4 million for charity, out of this 4 million; 90,000 went to charity, the rest to administration!!! Corrupt money grabbing greedy bastards. Ideal candidates for the New World (Dis) Order.

  14.   http://www.sklarskaporeba.pl/noclegi/ Says:

    Ne’er knew this, thankyou for letting me know.

  15.   Debroah Boliek Says:

    That is the way it should beand it is a very different situation from an importer who wines, dines, spends thousands and thousands of dollars on one reviewer who also happens to be a personal friend, especially when that reviewer seems never to taste anything blind. I do not pay attention to that reviewer and have a hard time figuring out how he is still in business.

  16.   Hobert Minney Says:

    PremieresUnited States remained in isolation

  17.   Florencio Depedro Says:

    Or if that idea sounds speculative, inane, stupid, or bizarre, suggest your own alternative. I claim no corner on ideas here. Surely some bright mind can come up with a better solution than escalating salaries, a longer season, and a prospective lockout? Where is the logic in that?

  18.   Trang Bellizzi Says:

    Thanks for what you do,Austin

  19.   ogloszeniowy serwis Says:

    Excellent conclusion:D I am forwarding this to my readers as I am sure they will benefit from it!

  20.   Anonymous Says:

    Would love to constantly get updated great blog!

  21.   Modern Dining Room Says:

    hello there and thank you for your info

  22.   Law School Admissions Says:

    I loved as much as you’ll receive carried out right here. The sketch is tasteful, your authored material stylish. nonetheless, you command get got an impatience over that you wish be delivering the following. unwell unquestionably come further formerly again as exactly the same nearly very often inside case you shield this increase.

  23.   celebrity fashion Says:

    There is apparently a bundle to identify about this. I assume you made certain nice points in features also.

  24.   Mental Abuse Says:

    Hello. splendid job. I did not imagine this. This is a fantastic story. Thanks!

  25.   Hollie Wynn Says:

    Hi.br / I’ve website about no cost application. I want to complete own portal about this.

  26.   https://rebelmouse.com/thebloodpressuresolutions Says:

    Soon after adjustments ended up made for age and gender, success display a 9 maximize in danger of dying for just about every just one mmHg inter-arm dissimilarities in blood strain, prompting the authors to counsel that BP really should be routinely measured in all patients going through procedure for hypertension Their volunteers received the equal of 30 minutes of pure sunlight at noon on a sunny working day in Southern Europe. They shielded their volunteers from the warming effects, just in circumstance that was the lead to. It decreased blood strain by about 5 factors, and the outcomes lasted half an hour.

  27.   education Says:

    I have observed that in digital camera models, extraordinary devices help to aim automatically. Those sensors associated with some surveillance cameras change in in the area of contrast, while others make use of a beam of infra-red (IR) light, particularly in low lumination. Higher specs cameras sometimes use a mixture of both models and could have Face Priority AF where the video camera can ‘See’ some sort of face while keeping focused only upon that. Thank you for sharing your ideas on this web site.

  28.   Drucken auf Leinwand Says:

    Great blog post. Things i would like to add is that laptop or computer memory should be purchased in case your computer is unable to cope with whatever you do by using it. One can mount two random access memory boards with 1GB each, for instance, but not certainly one of 1GB and one of 2GB. One should check the car maker’s documentation for the PC to be certain what type of ram is necessary.

  29.   Elin Norkus Says:

    Thanks for these guidelines. One thing I should also believe is the fact that credit cards supplying a 0 rate often attract consumers along with zero interest rate, instant approval and easy online balance transfers, nevertheless beware of the real factor that will certainly void the 0 easy streets annual percentage rate and to throw anybody out into the very poor house quickly.

  30.   Kareem Tavernia Says:

    I had a couple chances to purchase some antique cars about the a long time, and fate, for some reason, usually seems to block me. As soon as in Montona, I experienced a decent (I think) ’30 Ford truck, although the man who owned the put was for the phone, which appeared like hours. When he bought from the phone I told him I used to be enthusiastic about the truck, and he told me he just sold it above the phone. I loathe Ma Bell lol My 2nd chance, was to order a ’36 Dodge Bros Bobtail coupe. I tried to beg, borrow, and actually considered stealin’ the askin’ price of only $800. It was all orginal, straight human body, superior interior, and it ran just like a sewin’ machine. One particular I In no way could have bought, was a ’36 Ford Victoria with all the suicide doors, from some neighbors of ours who inherited it from your original owners. The ONLY matter I noticed that wasn’t original, was the transform signal indicator. Everytime I went to their house, I used to be inside the basement, sittin’ in that beautiful car, just day dreamin’. Cars now are crap, have no personality, and all glance the identical. Should you have and older vehicle to sell, indication a contract with the buyer, that it it least retains a lot of it can be original glimpse, normally, you just pee’d a vanishing element of the Finest section of cars/trucks. AND, if you have bought certainly one of these just sittin’ around, and somebody delivers you excellent challenging cash for it…..Market IT! It really is worth nothin’ in case you just let it sit and change to rust, as was the case of a ’57 Chevy Apache p/u a number of nation miles from here. Ultimately they sold it, and I rejoiced! lol. For now, not actually an antique, but I have obtained a ’71 Chevy C10 p/u. She aint very however…but gimme time gents….just gimme time!

  31.   Salvage Cars Says:

    I like what you guys are up too. Such intelligent work and reporting! Carry on the superb works guys I’ve incorporated you guys to my blogroll. I think it’ll improve the value of my website :).

  32.   Orville Hodder Says:

    I must convey my appreciation for your kind-heartedness for folks who really want help with your issue. Your personal dedication to passing the message across was exceedingly valuable and has regularly encouraged employees much like me to arrive at their endeavors. Your own insightful help indicates this much to me and extremely more to my fellow workers. Best wishes; from all of us.

  33.   Kitchen Cabinets Says:

    Some truly excellent articles on this web site , thankyou for contribution.

  34.   Niesamowity namiot halowy Says:

    Distinction a few variants 3D . structure created XPS . May much securities, primarily sa very light, thanks features raw , of I are made ??. Styrodur can cover the any shade . SubTotal can be used both on the facades buildings as also in spaces. Putting Location letters on the walls buildings is possible thanks insensitivity raw to action weather conditions. Such advertisement can ennoble . First of all, give a set of its Shine. For this purpose front area append August a shell or PVC plates . Next model characters space is details built with dibond brushed . This is the material , which is summary aluminum with a polyethylene core . Such letters excellent presents in shade silver also gold Being interesting one also very elite Storage advertising. Dimensional letters may form too as component mix various technologies or be made ?? exclusively of a single option raw material. There’s also opportunity preparation advertising light which Significant method prolongs the operation of the ad also for a night . good visible of huge distances.

  35.   burglar alarm installation london Says:

    The very core of your writing while appearing reasonable at first, did not really settle very well with me personally after some time. Someplace within the paragraphs you actually managed to make me a believer unfortunately only for a very short while. I nevertheless have got a problem with your leaps in assumptions and you might do nicely to fill in those breaks. In the event that you actually can accomplish that, I could definitely end up being amazed.

  36.   3ds emulator Says:

    I

  37.   zabor ilenta Says:

    Sweet website , super pattern, very clean and employ pleasant.

  38.   Aurelio Corella Says:

    hey buddy, this is a quite exciting article

Leave a Reply