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Texas Court Upholds the Right to Photograph and Record Police Activity

July 26th, 2014 by Alicia Calzada and tagged , , , , , , , , , , ,

In an important ruling in Texas, a federal judge held that the right to record police activity is a clearly established right protected by the First Amendment.

In a civil rights lawsuit, Antonio Buehler alleged that his constitutional rights were violated when he was arrested by the Austin Police Department multiple times for taking pictures of police activities. Buehler was first arrested when he came upon a police scene at a gas station, where he began recording the arrest because he felt that excessive force was being used. After that arrest, he formed a group called the “Peaceful Streets Project” and began regularly documenting police activity. He was arrested again and again for documenting police activity, according to the lawsuit.

In an effort to get the lawsuit dismissed, the Austin Police Department claimed “qualified immunity” which protects state officials from suit. However, qualified immunity is not available if officials violate a clearly established constitutional right. In their argument, APD claimed that the right to photograph or videotape police officers “is not recognized as a constitutional right”.

In an order released Thursday, the federal judge in the case held that not only is there a constitutional right to document police officers, but that the right is clearly established. Magistrate Judge Mark Lane held that “the First Amendment protects the right to videotape police officers in the performance of their official duties, subject to reasonable time, place and manner restrictions.”

Continuing, the judge wrote:

If a person has the right to assemble in a public place, receive information on a matter of public concern, and make a record of that information for the purpose of disseminating that information, the ability to make photographic or video recording of that information is simply not a new or a revolutionary expansion of a historical right. Instead the photographic or video recording of public information is only a more modern and efficient method of exercising a clearly established right.

Buehler’s attorney, Daphne Silverman told NPPA, “Antonio and I are pleased with Judge Lane’s ruling upholding the First Amendment right to document police conduct. This is a win for the citizens and should be of no concern to honest police officers.”

The NPPA filed an amicus brief in the case last month in support of Buehler’s position, whose case will now go forward.

See also, http://www.mystatesman.com/news/news/crime-law/federal-judge-upholds-activist-antonio-buehlers-ri/ngnbp/

Posted in Austin Police, blogging, False Arrest, Federal Court, First Amendment, First Amendment rights, Lawsuit, Legal, National Press Photographers Association, NPPA, Photographers' Rights, photojournalism, Police, Recording Police | No Comments »

NPPA Sends Recommendations to IPEC Regarding Copyright Protections

August 24th, 2012 by Advocacy Intern and tagged , , , ,

The National Press Photographers Association (NPPA) has submitted comments to the Intellectual Property Enforcement Commission (IPEC) detailing recommendations that would improve copyright protection for visual images.

The 16-page document, which was submitted following an open request for comments from IPEC, highlighted numerous measures specifically aimed at giving photographers recourse when their images where pirated.

“Most photojournalists view our profession as a calling,” the comment states.  “None really expect to become wealthy in this line of work, but most do expect to earn a fair living, support themselves and their family and contribute to society. Copyright infringement reduces that economic incentive dramatically.”

One recommendation put forth in the comments was to track takedown notices for websites hosting pirated images in order to hold search engines liable when they continue to list those infringing websites in search results.  In a move indicating that this recommendation may soon become reality, Google announced on the same day that the comment was submitted, that it would drop the search rankings of sites with multiple takedown notices.

“Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site,” the Google Search blog said.  “Sites with high numbers of removal notices may appear lower in our results. This ranking change should help users find legitimate, quality sources of content more easily.”

The NPPA comments proposed increased accountability for Internet Service Providers (ISPs) in addition to search engines.  The comments also proposed enacting statutes targeting news aggregators and their use of hyper linking, encouraging metadata schemas that would enable easier identification of image ownership, and creating a small claims solution for copyright infringement.

The comments stressed that the loss of staff positions at newspapers nationwide and the increasing copyright infringement of images by the public have undermined the value of photojournalism and made it more important than ever that photojournalists have their images protected.

“The end result of the continued devaluation of journalism, and photojournalism, is that communities suffer,” the comment states.  “Important stories on public spending, public welfare, health and safety will not be told with the vigor and thoroughness of years past.”

NPPA’s comments can be viewed at this link.

Advocacy Chair note: NPPA Intern Justice Warren contributed significantly to this effort.

Posted in blogging, copyright, Legal, Licensing, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

Right to Record–Recording in Public Meetings is a Right in Arkansas

April 3rd, 2012 by Alicia Calzada and tagged , , , , , , , ,

The Attorney General in Arkansas issued an opinion letter ruling on Monday confirming that a city council in the state did not have the right to ban video recordings of public meetings.

The Associated Press is reporting that the White River Current newspaper sought an official opinion from the AG’s office after the local city council in Calico Rock banned recordings from its meetings. The newspaper had posted council meeting videos on YouTube.

Three questions were posed to the AG, including

1) whether or not the Arkansas Freedom of Information Act granted citizens a right to make a video recording of a public meeting of elected officials?

A: Yes.

2) whether a claim that recording is “disruptive” because a council member is uncomfortable being recorded, sufficient reason to ban recording.

A: No.

3) whether or not the First Amendment to the U.S. Constitution grants citizens the right to record public officials in performance of their duties.

A: No- the First Amendment does not grant peopel the right to make a tape recording of a public meeting.

In an eleven page opinion, the AG said, in summary:

When one reads the FOIA broadly to foster greater openness and more disclosure—as we are required to do—I believe there are good grounds to conclude that our FOIA affords persons the right to videotape a public meeting. According to my research, this also accords with the law in the overwhelming majority of states. But, in response to your second question, the right to videotape a public meeting is subject to the public body’s reasonable regulation. While such regulation cannot ban videotaping, the regulation can ensure that the activity is done in a manner that does not disrupt the meeting. In my view, the mere fact that a member of the public body is uncomfortable being filmed is not a sufficient reason to ban the videotaping. When it comes to videotaping public meetings, the FOIA appears to give greater rights than does the First Amendment to the U.S. Constitution because—in response to your third question—the amendment does not give people a right to videotape public proceedings.

The opinion is loaded with interesting case law and citations to various state FOI decisions. See in particular footnotes on page 3, for an analysis of various states and the right to record public meetings, with citations to rules expressly permitting recording in Indiana, South Carolina and Kentucky. The opinion can be found at this link.

 

Posted in Access, blogging, broadcasting, First Amendment, News Photography, Newsgathering, photographers, Photographers' Rights, photojournalism, Public Forum, Public Photography, Reasonable Expectation of Privacy, Recording, Regulations limiting photography | No Comments »

Seventh Circuit Rules: States May Restrict Broadcasting of Publicly Sponsored Sporting Events

August 25th, 2011 by Alicia Calzada and tagged , , , , , , , , , , ,

In a long awaited ruling, the Seventh Circuit on Wednesday held that the Wisconsin Interscholastic Athletic Association (WIAA) was within its rights to grant exclusive broadcast rights to a private commercial vendor and to charge news organizations a fee for the right to broadcast games. The court held that such arrangements do not run afoul of the First Amendment.

Addressing only the issue of the broadcasting of the entire event, the court held that a sporting event was a “performance” and the right to broadcast an event in it’s entirety is a proprietary right that a governmental entity may exercise. The case, WIAA v. Gannett began when The Appleton Post-Crescent, a Gannett newspaper, broadcasted several state championship football games online in their entirety, believing that it was within their First Amendment right to do so. The WIAA sued.

The court first rejected the notion that this case was a copyright case and then proceeded to make intellectual property analogies to the sporting events, repeatedly calling the sporting events “performances,” (performances are protected by copyright) and comparing sporting events to concerts, plays and patents, all of which have protectable intellectual property elements. No court has ever held that a sporting event is a copyrightable performance, and this court did not either. A sporting event is not a work of authorship like a concert or a play. While the court fell short of explicitly holding that a sporting event has intellectual property rights, it basically upheld the assertion of intellectual-property-like rights by the WIAA (while insisting that no intellectual property rights were involved). The underlying basis for the court’s holding was the Supreme Court case of Zacchini v. Scripps-Howard, which held that a television station misappropriated the property of a human cannonball performer by broadcasting the performance in its entirety.

A bright spot in the ruling is that the Seventh Circuit rejected the lower court’s finding that sports reporting deserves less First Amendment protection than political reporting, and held that “[t]here is no basis for a rule that makes the press’s right to coverage depend on the purported value of the object of their coverage.” This is a win for the First Amendment.

Importantly, the ruling is limited to the single issue of whether or not the media has a First Amendment right to broadcast an entire event sponsored by a state actor. But the reasoning is broad enough to be interpreted to support a multitude of restrictions. For example, within the restrictions imposed by the WIAA under the exclusive broadcast agreement, news organizations don’t have a right to “live blog” the events. The court took no issue with that aspect of the exclusive agreement, leaving the live blog restrictions in tact.

The court specifically didn’t address issues in the conflict related to still photography, such as reprint sale restrictions, because they were not raised by the parties on appeal.

It will not be surprising if this case is followed by further restrictions on coverage of government events. The fear is that municipalities and sports associations alike may interpret this ruling to mean that a city can sponsor a public event and then restrict who may broadcast the event. This ruling could extend to restrictions on broadcasting parades, marathons, and city-sponsored festivals. Several years ago a Los Angeles District Court ruled that the city could not grant exclusive rights to an “official” television station.

The result is a disappointment to the NPPA, which joined several other news organizations in filing an amicus brief in support of the newspaper  last year.

The entire Seventh Circuit ruling can be found here: WIAA v. Gannett Seventh Circuit Opinion, No. 10-2627

An extensive legal article that I wrote on the issue can be found here:

An earlier NPPA article on the conflict can be found here.

Posted in Access, blogging, broadcasting, copyright, Federal Court, First Amendment, Legal, News Photography, photojournalism, students | No Comments »

DC Taxicab Commission Adjusts Open Meetings Policy- Expressly Permits Recording

August 4th, 2011 by Alicia Calzada and tagged , , , , , , , ,

Five weeks after the NPPA sent letters to the D.C. Taxicab Commission, and U.S. Parks Police protesting an incident in which two journalists were arrested for taking pictures and recording a public meeting, the Commission reports that it has revised its policy on public attendance, photography and recording at meetings.

The new policy states, in part,

A member of the public, including any representative of the media, may record or photograph the proceedings of the Commission at an open meeting by means of a tape recorder or any other recording device so long as the person does not impede the orderly conduct of the meeting, by, for instance, creating excessive noise that impairs the ability of others to hear the proceeding or using excessively bright artificial light.

The Interim Chairwoman of the  taxicab commission, Dena Reed,  notified the NPPA of the change in a letter this week. Reed was quoted in June in a Washington Post article as stating that the commission had banned videotaping of its proceedings because it was disruptive.

Useful links:

The entire “Open Meetings Policy and Protocol,” can be found on the DC Taxicab Commissions website at this link.

NPPA’s Letter to the Taxicab Commission

Washington Post article about the incident.

Second Washington Post article about the incident and copy of a statement by Reed after the incident.

Carlos Miller’s article and video regarding the original incident.

Posted in Access, blogging, First Amendment, Legal, photographers, Photographers' Rights, photojournalism | No Comments »