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.

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