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Senate to Consider Bill Favoring Cameras in U.S. Supreme Court

June 21st, 2013 by and tagged , , , , , , , , , , , , , , ,

Senators Dick Durbin (D-Ill) and Chuck Grassley (R-Iowa) introduced legislation Thursday that would require the Supreme Court to televise proceedings, just days before the high court is expected to hand down a series of major rulings.

The Supreme Court has just over a week to publish decisions on gay marriage, affirmative action, and the Voting Rights Act, some of the most contentiously litigated and publicly discussed issues of the day.

The Cameras in the Courtroom Act of 2013 would require the Supreme Court to offer live television access of proceedings unless a majority of Justices agree that doing so would violate the due process rights of a party before the Court.  Currently, a written transcript of the proceedings is published each day the Court is session, and audio is posted at the end of the week.

In a letter to Chief Justice John Roberts earlier this week, Senator Durbin argued the importance of increased transparency:

“The Court’s opinions in these cases will impact millions of individuals and the collective fabric of American life. Accordingly, it is not unreasonable for the American people to have an opportunity to hear firsthand the arguments and opinions that will shape their society for years to come.”

It’s not the first time someone has tried to pull back the curtain on the Supreme Court’s decision-making process.  Almost two decades ago, a question about the possibility of cameras in the courtroom led Justice David Souter to famously remark, “The day you see a camera come into our courtroom, it’s going to roll over my dead body.”

Opposition to cameras in the Court is centrally grounded in concerns that their presence will have a warping effect, either on the manner in which Justices consider cases, or the way the public perceives the Court.

Justice Antonin Scalia has openly worried that edited video clips from the Supreme Court would paint an inaccurate picture of what actually happens in chambers.  “For every one person who sees it on C-SPAN gavel to gavel so they can really understand what the court is about . . . 10,000 will see 15-second takeouts on the network news, which, I guarantee you, will be uncharacteristic of what the court does,” Scalia said in 2005.

NPPA General Counsel Mickey Osterreicher responded to such critiques in an article published in the Reynolds Courts & Media Law Journal.  “The federal judiciary must be mindful of its high power not to erect its own prejudices into judicial rules, Osterreicher observed, “Society can ill afford to let the misplaced and speculative objections of jurists antagonistic to the electronic press substantially undermine a fundamental constitutional right by lens-capping the very tools of the profession and eviscerating the very means by which most Americans receive their news.”

Not every Justice agrees that the Supreme Court is no place for cameras.  Justices Kagan and Sotomayor have made statements reflecting their support for the video recording of court proceedings, and in 2008 Chief Justice Roberts told NPPA Attorney Alicia Calzada that he was not opposed to the idea.  Regardless, the Supreme Court has not signaled any meaningful change in its official position.

The Senate Judiciary Committee has offered bills similar to Durbin and Grassley’s the past two Congresses; both died on the Senate floor.

Lawmakers’ inability to move on this issue is hardly surprising given the recent epidemic of inaction on Capitol Hill, and concerns over potential separation of powers conflicts may be tempering enthusiasm among some in Congress.

But cameras in the Supreme Court isn’t an issue that’s going away, nor should it be.

“The ability of the public to view actual courtroom trials should not be trivialized,” Osterreicher contends.  “That right, advanced by cameras in the courtroom, is the right of the people to monitor the official functions of their government.  Nothing is more fundamental to the democratic system of governance than this right of the people to know how their government is functioning on their behalf.”

You can access weekly updated audio of oral arguments here, while written transcripts are posted the same day the Court hears a case.

Posted in Access, Cameras, Cameras in the Courtroom, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, Newsgathering, NPPA, Open Government, photographers, photojournalism, SCOTUS, US Supreme Court | No Comments »

California Parks Department Responds to Incident with Film Crew

June 13th, 2013 by and tagged , , , , , , , , , , , , , , , , , ,

A month after being notified the California Department of Parks and Recreation has responded to a letter sent by NPPA general counsel Mickey Osterreicher regarding an incident during which parks employees detained a news crew and ordered them to delete their footage. KGTV Team 10 reporter Mitch Blacher and photojournalist Arie Thanasoulis were on public property at San Onofre State Beach on April 29, 2013 shooting footage for a story on the San Onofre Nuclear power plant when they were approached by a parks employee who accused them of trespassing, blocked their vehicle and ordered them to stop recording.

That employee, later identified as Bob Warman, then called State Parks Police Officer Ennio Rocca  who arrived and also proceeded to harass and threaten to arrest the pair for doing nothing more than recording video of the plant from an area open to the public.  Officer Rocca in turn called an unidentified employee of Southern California Edison, who arrived on the scene dressed in full SWAT gear. The three of them then ordered the crew to delete whatever video they had already shot under threat of arrest.While the trio claimed the news crew was standing on private property, the “no trespassing” sign they referred to turned out to be for “no parking,” while a fisherman and a woman walking her dog are visible in video footage in an area they alleged was “secure.” Although the news crew complied with the unreasonable demand and deleted a file containing the footage they were able to broadcast a story using video contained on a second file.

In his letter Osterreicher called the actions of the parks officers “a clear violation of the First and Fourth Amendments.” “It is one thing for officers to act when there is probable cause, Osterreicher wrote, “it is quite another to abuse that discretion in order to create a climate that infringes upon free speech under the pretext of safety and security.” He requested that the “matter be fully investigated and the employees properly disciplined if so indicated.” Osterreicher also advised the department by email of another incident that occurred on May 14, 2103 involving its officers, who detained and questioned two other photographers, JC Playford and Gerry Nance, filming near the power plant gate.

Responding to the NPPA, California Department of Parks & Recreation Chief Counsel Claire LeFlore agreed that the officers had overstepped their bounds. “In hindsight, they may have acted with an overabundance of caution while detaining the news crew,” LeFlore said, “but there was never an intention to violate anyone’s constitutional rights.” LeFlore noted that the incident came shortly after the Boston Marathon bombing, and at that “staff was on high alert for the possibility of additional terrorist actions.” Osterreicher responded to that statement in a subsequent interview, saying, “it is indeed unfortunate that well-meaning people still somehow equate an act of terrorism with photography.” “In the Boston tragedy it should be duly noted that law enforcement requested anyone who had pictures or video of the event provide them voluntarily – not delete them,” he added.

The importance of defending sensitive targets is well understood, but, as Osterreicher noted, “in any free country the balance between actual vigilance and over-zealous enforcement is delicate.” LeFlore says all personnel involved in the incident have been counseled on how to properly deal with the press “so that First Amendment rights can be protected and both the press and [parks] staff can carry out their functions with minimal interference with each other.” Officers have also been counseled that there is no legal basis for the seizure or destruction of photographs or video.

Osterreicher also sent copies of his letter to officials from Southern California Edison, the owners of the plant but received no response. In its report 10News quoted a spokeswoman for the utility, as saying, “a security officer ‘responded conservatively when he indicated to a television crew his preference that they stop filming and delete their video.'” Osterreicher also responded to that statement, “Indicating a preference that someone stop filming is a far cry from illegally ordering someone to do so under threat of arrest.” “Aside from being factually incorrect, the arrogance of Southern California Edison in their failure to respond to our letter, unrepentant statements to KGTV and behavior of their employees speaks for itself,” he concluded.

The NPPA has offered to work with the California Department of Parks and Recreation to improve their guidelines and training regarding these matters in order to avoid similar situations. The parks department says it will consider NPPA suggestions in implementing an expanded staff training program.

KGTV reporter Mitch Blacher said in an email, “It is encouraging to see the California state parks police work to remedy the oppression of constitutional rights by their officers,” adding, “As American citizens and working journalists our treatment was highly troubling.” “More questions need to be asked as to why California parks police and staff followed the direction of non-sworn private security personnel instead of the federal and state constitutions they swore an oath to uphold.”  1oNews Special Projects Executive Producer Ellen McGregor added, “As a manager behind-the-scenes, who talked for quite some time on the phone with parks police that day, Mickey’s offer train the agencies on the First and Fourth Amendments proves the NPPA’s commitment to a free press, and the journalists at KGTV are grateful.”

Posted in Access, Assault on Photographers, Attack Photographers, California, detained, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording, Regulations limiting photography, trespass | No Comments »

Supreme Court Rejects Case Advocating Extension of Press Access to Polls

June 11th, 2013 by and tagged , , , , , ,

The Supreme Court has refused to hear a Pennsylvania newspaper’s challenge of a state law that denies journalists access to polling places on Election Day.

The publisher of the Pittsburgh Post-Gazette had asked the Supreme Court to review a circuit court decision that upheld a Pennsylvania law which prohibits anyone other than police officers, election officials and voters from coming within ten feet of a polling place on Election Day.  Though few states have laws on the books expressly prohibiting all recording inside polling places, most have issued written official statements limiting such access, according to the Digital Media Law Project.

The Post-Gazette initially challenged the law ahead of last November’s elections, in anticipation of the implementation of Pennsylvania’s controversial voter ID law.  Critics of the voter ID law contended that it would be used to selectively disenfranchise voters, and that media presence at polling places would combat such abuses.

Ironically, the voter ID requirement was essentially scrapped in the weeks prior to Election Day after succumbing to legal challenges in state court.  Nonetheless, the Post-Gazette’s suit raises an interesting question: do members of the media have a constitutional right to gather news inside polling places?

The short answer, at least according to the U.S. Third Circuit Court of Appeals, is no.

Despite the fact that the Supreme Court has recognized independent protections for “some news-gathering activity,” the Third Circuit noted that the Constitution does not require the government to grant the press special access to information not available to the general public.  (Branzburg v. Hayes, 408 U.S. 665, 681 (1972))

When determining whether the press should be granted access to a particular venue, judges balance the government’s interest in limiting access, against First Amendment concerns for the free exchange of ideas.  To do this, courts consider whether a particular place has historically been open to the press, and whether public access plays an important roll in the activity in question.

Co-Director of the Center for Media Law and Policy at the University of North Carolina David Ardia told the NPPA this case will be a difficult one for press advocates to win. “From the perspective of someone who is in favor of greater access, I think that this a tough issue to expect the Supreme Court to find there is a right of access,” Ardia said, adding “Arguments on the government’s side are very strong.  There can’t be a more compelling government interest than preventing interference with voting.”

The Third Circuit found that the press has not historically enjoyed access to polling places on Election Day, observing that the U.S. has used the secret ballot method of voting since the mid to late 1800’s.

While it conceded that media presence at the polls might combat fraud or “other electoral evils”, the court found that reporters might also frighten or intimidate voters.  Additionally, the Third Circuit worried that press access, once granted, might prove prohibitively broad in scope.  That problem, the court said, arises from the fact that granting one organization access essentially means granting all organizations access.  It’s an issue that’s compounded by the rise of citizen journalism, a phenomenon that continues to blur the line between professional and non-professional media.

Considered together, the court found these factors suggest that journalists do not have a First Amendment right to access polling places on Election Day.  But until the Supreme Court takes a case involving such a situation, a definitive answer will remain elusive.

Professor Ardia says that might be a plus for those who favor greater access, noting that “rushing to get the Supreme court to address this issue could end negatively.”  The high court prefers to have the benefit of a rich background of lower court decisions.  For that reason, Ardia says, “it may be a benefit for more time to pass as more appellate courts find and identify these rights.”

Framing the goal of press access broadly also may strengthen the argument for its extension, Ardia adds. “We’ve gathered a tremendous amount of data to support the argument that the transparency around the functioning of polling places is essential.”

Ultimately, Ardia concludes, “I’m not sure anyone is arguing that there shouldn’t be any limits at all.”  The questions moving forward then are those of scope: how much press access is needed, and how does the law balance those against government’s interest in overseeing efficient elections?

These are questions that will be answered as case law, and the societal and technological changes that drive it, continues to evolve.

Posted in Access, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

Turkey’s “Lady in Red” and the Importance of Professional Photographers

June 10th, 2013 by and tagged , , , , , , , , ,

Our words often fail us in situations involving the best and worst of the world.  Sometimes, all we can say is “You have to see it to believe it.”  The photograph allows us to travel to these places, the places that words cannot take us.  What’s occasionally lost in all of this is just how important the person behind the camera is to capturing what’s in front of it.

Protests in Turkey have spread over the last week, as dissidents across the country continue to take to the streets to protest the dictatorial actions of the central government.  Recent curbs of alcohol sales, restrictions on unions, and other attempts to impose strict Islamic law initially triggered demonstrations. It’s the brutal police response to these protests, however, that now appears to be driving unrest.

Much has been written about what’s happening in Turkey, but it’s a picture that seems to say it all.

It’s a picture that’s commanded the world’s attention.

"Lady in Red"
(REUTERS/Osman Orsai)

“A single frame has distilled the experience of the protests and the crackdowns, of an angry people and callous government, into one crisp and indelible image,” said Pulitzer prize winning journalist C.J. Chivers, in an interview with the NPPA.

The “lady in red” as she is being called, was sprayed in the face with teargas at a park in Istanbul.  The image of what befell her is considered emblematic of the vicious crackdown on what began as peaceful protests.

As important as the photograph is to drawing attention to yet another popular uprising in the Middle East, it’s also significant in another way.   The “lady in red” is a stark reminder that the professional photographer is a fundamental element of an effective news media.

“Look at it [the photograph] closely. Look at the frames taken immediately before and after,” said Chivers speaking shortly after the layoffs at the Chicago Sun-Times. Chivers, who writes for the New York Times and compiles and shoots photographs for his blog, drew a link between the two events, “This photograph exposes the folly of thinking that citizen journalists can replace experienced photojournalists. What you see required a mix that few of us who wander around in public with point-and shoots or smartphones can match: high-functioning equipment, well-conditioned technical skills and the eye and touch of an accomplished artist, all applied together in quickly shifting and painful circumstances.” Chivers also noted that “Citizen journalists or writers with smartphone cameras can and do complement professional photographers.” “But this single frame shows the difference between the former and the latter, and is a tribute not just to the protesters, but to the real thing,” he concluded.

If a picture is worth a thousand words, it is equally important to remember that the eloquence of those words flows from the eye of the person who made the image.

 

 

Posted in National Press Photographers Association, News Photography, NPPA, photographers, photojournalism | No Comments »