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Judge Halts Enforcement of Unconstitutional Nude Photo Law in Arizona

July 10th, 2015 by Mickey Osterreicher and tagged , , , , , , , , , , ,

PHOENIX – A federal court today permanently ordered Arizona state prosecutors to halt enforcement of a 2014 law restricting the display of nude images.

The order approved a joint final settlement between the Arizona attorney general and the coalition of plaintiffs which include the National Press Photographers Association (NPPA), Arizona booksellers, book and newspaper publishers, and librarians, who filed a federal lawsuit challenging the law.

The order resolves all claims in the lawsuit, Antigone Books v. Brnovich, and states that plaintiffs are entitled to attorney’s fees.

“We are very pleased with the outcome of this case and our representation by our attorneys in this matter,” said Charles W. L. (“Chip”) Deale, NPPA Executive Director.

“This is a complete victory for publishers, booksellers, librarians, photographers, and others against an unconstitutional law,” said Media Coalition Executive Director David Horowitz, whose members include plaintiffs in the suit. “Now they won’t have to worry about being charged with a felony for offering newsworthy and artistic images.”

The law, Arizona Revised Statute 13-1425, was initially passed with the stated intent of combating “revenge porn,” a term popularly understood to describe a person’s malicious posting of an identifiable, private image online with the intent and effect of harming an ex-lover. But, as plaintiffs maintained in the lawsuit, the law wasn’t limited to revenge and criminalized far more than offensive acts. It could have led to the conviction of someone posting a nude photo with no intent to harm the person depicted. This would include, for example, an artistic photographer who creates an anthology of his images of nudes — as well as the book’s publisher, seller, or librarian.

As part of the lawsuit, NPPA General Counsel Mickey H. Osterreicher expressed fears in his declaration “that the NPPA’s members (including me) are at risk of prosecution under the Act simply for doing our job—the accurate and comprehensive reporting of the news. The Act would subject the NPPA’s members to prosecution for taking newsworthy, non-obscene photographs and videos, and either offering those photographs and videos for publication, or themselves publishing the photographs and videos through electronic or other media.” “With this very comprehensive settlement, that concern has now been alleviated,” said NPPA President Mark Dolan.

Likewise, a person who shared a photograph could have been charged with a felony even if the person depicted had no expectation that the image would be kept private and suffered no harm, such as a photojournalist who posted images of victims of war or natural disaster. As a result, the law applied to any person displaying an image of nudity, no matter how newsworthy, artistic, educational, or historic.

“This is an important vindication of the First Amendment and a great resolution for our clients,” said ACLU Staff Attorney Lee Rowland, who, along with lawyers from the ACLU of Arizona and Dentons US LLP, represents the plaintiffs. “We commend the state for agreeing not to enforce a broad statute that chilled and criminalized speech unquestionably protected by the Constitution.”

Dan Pochoda, attorney for the ACLU of Arizona, added: “We always believed that it would be a waste of the Arizona taxpayers’ money to continue defending this unconstitutional statute. We’re pleased that the court’s order means this law will not be enforced, all without additional and unnecessary litigation.” Today’s order is at: http://mediacoalition.org/antigone-books-v-brnovich/

The plaintiffs were: Antigone Books L.L.C.; Intergalactic, Inc., D/B/A, Bookmans; Changing Hands Bookstore, Inc.; Copper News Book Store; Mostly Books; Voicemedia Group, Inc.; American Booksellers Foundation For Free Expression; Association Of American Publishers; Freedom To Read Foundation; and the National Press Photographers Association (NPPA).

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

Court Orders Police in Ferguson Not to Interfere with Individuals Who are Photographing or Recording in Public

November 21st, 2014 by Alicia Calzada and tagged , , , , , , , , , , , , , ,

Today a federal judge for the Eastern District of Missouri granting three orders agreed and consented to by the Missouri State Highway Patrol, the County of St. Louis Missouri and the City of Ferguson. The orders signed by Judge John A Ross for the Missouri State Highway Patrol and the County of St. Louis enjoins those entities from  “interfering with individuals who are photographing or recording at public places but who are not threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.”

The order directed at the City of Ferguson more specifically prohibits the city from enforcing or threatening to enforce “any rule, policy or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest, or interfere with any individual, including any member of the media or member of the public photographing or recording in public places unless that person is threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.”

The fact that the orders protect photographers who are not “physically” interfering with law enforcement prevents agencies from claiming that the act of reporting is in itself threatening or otherwise an interference. “Journalists and law enforcement officials share a common responsibility – we all serve the public – raising the awareness of law enforcement personnel about these matters after the fact only means that journalists were prevented from doing their jobs, and because of that, the public was not properly served,” said NPPA president Mark J. Dolan.

In August the ACLU file a lawsuit in federal court against police agencies in Ferguson on behalf of photographer Mustafa Hussein. The complaint sought a preliminary injunction against police policies of demanding and ordering members of the media and public to stop recording the police acting in their official duty on public streets and sidewalks. It also sought to have the court declare that the police policy on its face and as-applied violates the First and Fourteenth Amendments by chilling free speech without due process.

In support of that lawsuit, the NPPA filed a Declaration outlining some of the issues faced by visual journalists as well as how NPPA’s general counsel, Mickey H. Osterreicher, tried to deal with those situations while he was in Ferguson this summer. The bigger issues were the fact that police tried to keep the media in areas they had established rather than allow  access to traditionally open public forums such as sidewalks. Osterreicher suggests that journalists print out and carry the orders to show police who may be in contempt. “While it is gratifying that the police agencies agreed to these self-evident liberties it is still troublesome that they have apparently failed to provide any substantive training regarding constitutional rights. As we have seen time and time again without proper training  p0lice frequently disregard the Bill of Rights and any enforcement orders as just another piece of paper,” Osterreicher said.

NPPA Executive Director Charles W. L. (“Chip”) Deale added, “We are pleased that the court again has recognized and emphasized the important and Constitutionally-protected right of visual journalists to perform their critical news-gathering function free of harassment and undue restrictions. The NPPA hopes and trusts that law enforcement agencies in and around Ferguson will unerringly abide by these court orders.”

The orders resolves the case, but the federal court specifically retains jurisdiction to enforce the injunctions.

Posted in Access, ACLU, Assault on Photographers, Ferguson, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, photographers, Photographers' Rights, photojournalism, Police, Visual Journalists | No Comments »

Federal “Suspicious Activity” Reporting Initiative Threatens First Amendment Rights

September 20th, 2013 by and tagged , , , , , , , , , , , ,

“I observed a male nonchalantly taking numerous pictures inside a purple-line train.”

If this excerpt from a Federal “Tip and Lead” report out of Los Angeles doesn’t necessarily convince you that a crime is afoot then you’re probably not alone.  Nonetheless, that photographer, and many others like him, are now in a federal database under a plan to single out people who may be planning terrorist activity

The problem with the Nationwide Suspicious Activity Reporting Initiative (SARI) is that many of the activities it targets seem well, unsuspicious.  Worse yet, many of those questioned under the program were engaging in activities protected by the First Amendment.  Despite revisions to try to improve the program, people are still being added to the database who appear to have been doing nothing wrong.  The offense of a man recently added to the database: being “very unfriendly.”  Another was reported for buying a large quantity of cigarettes.  Both individuals were of Middle Eastern decent.  While the language initiative specifically prohibits racial profiling, a cursory investigation of what files are available suggests people are occasionally targeted for their race.   The measure also appears to have the effect, intended or otherwise, of targeting photographers in particular.

Today, in a continued effort to raise awareness of the program and improve its operational standards, the ACLU released a series of the federally collected reports online.  The NPPA joined the ACLU and 25 other organizations in a letter demanding reform. The groups also held a press conference in San Francisco addressing the impact of Suspicious Activity Reporting (“SAR”).

One of the central issues with the SAR initiative stems from confusion over what behavior falls within the programs purview.  The 2009 revised standard for the Director of National Intelligence Information Sharing Environment (ISE), one of a pair of programs that make up the initiative, defines suspicious behavior as observable actions “reasonably indicative of pre-operational planning related to terrorism or other criminal activity.”  Further, the revision makes clear that “the same constitutional standards that apply when conducting ordinary criminal investigations also apply to local law enforcement and homeland security officers conducting SAR inquiries.”  The media groups applauded this as an improvement over previous versions of the program, but note that “the failure to clearly state that ISE policy did not authorize the collection, retention or dissemination of personally identifiable information in violation of federal regulations . . . has led to confusion and abuse.”

In addition, The FBI’s eGuardian program, the other arm of the initiative, does not meet the higher standards of the ISE.  The continued reporting of non-threatening behavior suggests that this disjoint is one of the causes of the problem.

Today’s letter also observed that “Based on the SARs obtained thus far, photography and videography are frequently reported without additional facts that render these constitutionally-protected activities inherently suspicious. This reporting trend matches anecdotal reports from photographers who frequently complain that they are not only detained and questioned, but are also prevented from taking photographs and video and deprived of their equipment by police.”

The NPPA has been involved with dozens of similar incidents.  They are troublingly common, even without a federal program that enables, if not encourages their occurrence. “As part of the ‘See Something Say Something Program’ the NPPA is deeply concerned that these policies create an unnecessary climate of fear and suspicion throughout the country under the guise of safety and security for otherwise First Amendment protected activity,” said NPPA general counsel Mickey Osterreicher.

Among the reforms suggested in today’s letter, the groups recommended the government “[re]move photography and other activities clearly protected by the First Amendment from inclusion in lists of SAR categories or other guidance criteria to prevent the unlawful stops, detention, and harassment of photographers, videographers, and journalists.”

Such a revision would be a step in the right direction to ensuring valuable First Amendment activities are not illegally obstructed, and that it’s the people who are monitoring the government, and not the other way around.

Posted in Access, ACLU, California, cell phone cameras, Department of Justice, DOJ, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording, SAR, Street Photography, Suspicious Activity, video cameras, Visual Journalists | No Comments »

Lawsuit Targets San Diego Law Enforcement Agencies for First Amendment Rights Violations

August 10th, 2012 by Advocacy Intern and tagged , , , , , , , , , , , , , ,

The American News and Information Services (ANIS) filed a Complaint Wednesday in federal district court seeking redress for the repeated violation of the First Amendment rights of an ANIS employee by San Diego City and County government officials.

The complaint alleges that San Diego law enforcement exhibited a pattern of First Amendment rights violations by giving law enforcement officers excessive discretion to prevent access to and recording of public safety activity.  It also alleges that the pattern is further evidenced by the San Diego Police Department’s (SDPD) exclusive authority to issue media credentials and the retaliatory actions taken against those who attempt to exercise their right to record.

“The SD Defendants, despite a revolution in access to news brought on by rapid technological advances, still seek through the use of government-issued press credentials control of the message through control of the messenger,” the complaint states.

James C. Playford, a National Press Photographers Association (NPPA) member who began work for ANIS after the SDPD refused to renew his press credentials, has been arrested four times since 2010 while attempting to cover public safety activities.  Three of those arrests resulted in the seizure of Playford’s equipment and raw video.  A photo and physical description of Playford was also allegedly disseminated to San Diego law enforcement identifying him as an individual prohibited from access to public safety activity.

San Diego law enforcement agencies have come under fire recently due to repeated arrests of photojournalists.  The NPPA sent a letter  to the SDPD and along with one from the American Civil Liberties Union of San Diego and Imperial County (ACLU) which they referenced on their website, requesting an end to police interference with photojournalists’ rights to record events occurring in public.  Wednesday’s letter was NPPA’s third letter to San Diego law enforcement this year concerning the rights of photojournalists.

“While the press may not have any greater access rights than the public to these incidents, they have no less rights either,” said Mickey H. Osterreicher, general counsel for NPPA, in his letter to the SDPD.  “Unfortunately a number of your officers have abused their discretion in limiting those press rights and then have detained and arrested our members when questioned about such discriminatory acts.”

In the most recent media controversy, NPPA member and freelance photojournalist Edward Baier was arrested on July 20th by the SDPD and charged with interfering with a police officer, though Baier claimed he was attempting to film from private property with the owner’s permission.  Baier said he was tackled by two officers during the altercation, causing him injuries requiring medical attention.

Baier’s arrest was his second this year by the SDPD.  In January, police told Baier to move away from the scene of a drowning, though the public was allowed to remain inside of the police tape.  When Baier protested, he was arrested and charged with resisting arrest.  The arresting officers later added two counts of assaulting an officer.

The NPPA sent a letter to the SDPD in January objecting to Baier’s arrest, and later sent a letter to the Office of the City Attorney requesting that Baier’s charges be dropped.

“The reliance by your officer to question, detain, interfere with, arrest and seize the property of someone engaged in a lawful activity under color of law is reprehensible,” Osterreicher said in his January letter to the SDPD.  “At best, behavior that chills free speech and unreasonably seizes property is extremely unprofessional, at worst it is criminal.”

Posted in Access, ACLU, ACLU of Dan Diego & Imperial County, Assault on Photographers, Attack Photographers, confiscated, First Amendment, First Amendment rights, Lawsuit, National Press Photographers Association, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Recording Police, San Diego Police Department, SDPD | No Comments »