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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 | No Comments »



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