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Led by NPPA, over 60 Media Companies & Organizations Join in Support of Journalists’ Rights

March 20th, 2017 by nppaeditor and tagged , , , , , , , , , , , , , , , , ,

On March 17, 2017, the National Press Photographers Association (NPPA) filed an amicus brief in the United States Court of Appeals for the Second Circuit supporting a visual journalist’s appeal of a lower court decision in favor of the defendant police officers who arrested him.

That “friend of the court” brief was joined by a broad coalition of over 60 media companies and organizations engaged in press photography, videography, broadcast news, journalism (both online and in print) and free-speech advocacy.

Photojournalist Douglas Higginbotham was covering an Occupy Wall Street protest at Zuccotti Park in New York City on the morning of November 15, 2011. In order to get a better vantage point from which to record the large crowd of police and protestors he climbed to the top of a phone booth. Mr. Higginbotham claims that while he was in the process of complying with police officers, who had asked him to come down, he was forcibly pulled off, arrested and charged with disorderly conduct. NPPA general counsel, Mickey H. Osterreicher was successful in having that charge quickly dismissed by the Manhattan district attorney.

Douglas Higginbotham on the day of his arrest covering an Occupy Wall Street protest at Zuccotti Park in New York City on the morning of November 15, 2011. Photo credit: PaulMartinkaPhotography.com

Higginbotham subsequently brought a federal civil rights lawsuit in the United States District Court for the Southern District of New York against the arresting officers and the City of New York. Among other things, his complaint alleged that “the defendants retaliated against him for filming a violent arrest in violation of his First Amendment rights.” In refusing to grant the defendants’ motion to dismiss the case, District Court Judge P. Kevin Castel held (with regard to the question of whether the police officers were protected by the doctrine of qualified immunity), that  “the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was ‘clearly established’ at the time of the events alleged in the complaint.”

The matter is now being appealed, following Judge Castel’s grant of a motion for summary judgment by the defendants. “Though we believe the District Court erred in granting summary judgment, we also believe that Judge Castel was correct in recognizing that the press has a First Amendment right to cover police activity, said Jay K. Goldberg, attorney for Mr. Higginbotham. “We urge the Second Circuit to adopt Judge Castel’s reasoning and align this Circuit with all others that have upheld this fundamental right of constitutional protection,” he added.

Attorneys Robert Balin, Abigail Everdell and Jack Browning, of Davis Wright Tremaine LLP drafted the amicus brief with help from NPPA’s Osterreicher. “The fact that more than 60 leading news outlets and free speech organizations have joined the NPPA in this friend of court brief speaks volumes about the importance of the First Amendment rights at stake in this case,” said Balin. “From Ferguson to Occupy Wall Street to tomorrow’s headlines, safeguarding the ability of the press and public to record and  freely discuss police activity in public places is essential to an enlightened, informed democracy. Given the national consensus by other courts, we believe a ruling by the federal appeal court in New York recognizing a First Amendment right to record the police in public is long overdue. We look forward to presenting our arguments.”

Those courts include the First, Fifth, Seventh, Ninth and Eleventh Circuits, which have expressly acknowledged the existence of this crucial right. The Second Circuit has yet to find that right as being “clearly established,” which has had a chilling effect on journalists and citizens, while officers who arrest or harass those recording police conduct continue to avoid liability by receiving “qualified immunity” for their actions.

The brief urges the Second Circuit to “recognize—as did the district court—that members of the press unconnected with the underlying events have a clearly established First Amendment right to record officers in public places in furtherance of their free press rights to gather and disseminate news on matters of public concern.” In the alternative, the amici argue, should the Court find “that the right to record the public conduct of police officers was not clearly established . . . at the time of Mr. Higginbotham’s arrest,” it “should nonetheless use this opportunity to declare the right to be clearly established going forward.”

In reflecting on his case, Higginbotham said, “I just want to thank the NPPA for assembling so many media industry leaders, along with an impressive coalition of free speech organizations  in support of my appeal. Now is a very important time for the courts to uphold our constitutional rights,  and send a clear message that a free press must be allowed to go about our invaluable duties, which are enshrined in the First Amendment , without fear of police retaliation, or having our livelihoods destroyed.”

“The attorneys for Davis Wright Tremaine are to be commended for their work on this brief,” said Osterreicher, who has been involved in this case for the last six years. “I believe that Jay [Goldberg] has crafted an excellent appeal, while Rob, Abigail and Jack at DWT have drafted an amicus brief that should help guide the court on this issue. Of course the overwhelming support from so many groups has been very gratifying and we hope the court will take judicial notice of that fact. I would also be remiss if I did not thank Lynn Oberlander and the Press Freedom Litigation Fund of First Look Media Works for their support of Doug’s appeal. Thanks also go to Gregg Leslie at the Reporters Committee for Freedom of the Press for helping to rally support for the brief. Last but by now means least, I must thank Doug Higginbotham, who had to endure his unlawful arrest for just doing his job and for standing up for his, and in turn all of our rights, by pursuing this case.”

The groups joining with the NPPA in the brief are: ABC, Advance Publications, Inc., ALM Media, LLC, the American Society of Journalists and Authors, American Society of News Editors, Associated Press, Association of Alternative Newsmedia, Association of American Publishers, Inc., Association of Magazine Media, The Author’s Guild, Inc., The Buffalo News, Buzzfeed, Inc., Cable News Network, CBS Broadcasting, The Daily Beast Company, LLC, Daily News, LP, Discovery Communications, LLC, Dow Jones & Company, Inc., Electronic Frontier Foundation, The E.W. Scripps Company, First Amendment Coalition, First Amendment Lawyers Association, First Look Media Works, Inc., Fox News Network LLC, Free Press, Freedom of the Press Foundation, The Freedom to Read Foundation, Gannett Co., Inc., Hearst Corporation, Inter American Press Association, Media Coalition Foundation, Media Law Resource Center, Inc., The Media Consortium, Inc., Meredith Corporation dba WFSB-TV, National Association of Broadcasters, National Newspaper Association, National Press Club, National Public Radio, Inc., NBCUniversal Media, LLC, New England First Amendment Coalition, New England Newspaper & Press Association, Inc., New York News Publishers Association, New York Press Club, New York Press, Photographers Association, New York State Broadcasters Association, Inc., The New York Times Company, The News Media Alliance, NYP Holdings, Inc., Online News Association, PEN American Center, Penske Media Corporation, Radio Television Digital News Association, The Reporters Committee for Freedom of the Press, Reporters Without Borders, Reuters America LLC, Sinclair Broadcast Group, Inc., Society of Professional Journalists, Student Press Law Center, Tully Center for Free Speech, Vermont Press Association, Vox Media and WNYW-TV FOX 5.

 

 

 

 

 

Posted in Disorderly Conduct, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Wall Street, photographers, Photographers' Rights, photojournalism, Photoshop, Police, Recording Police, Regulations limiting photography, retaliation for the exercise of First Amendment rights, Robert Balin, Visual Journalists | No Comments »

NY Federal Judge Rules in Photographer’s Favor Supporting 1st and 14th Amendment Rights

February 27th, 2017 by Mickey Osterreicher and tagged , , , , , , , , , ,

Today federal court Judge J. Paul Oetken denied a  motion to dismiss by the City of New York allowing the case, Jason B. Nicholas v. The City of New York, to proceed. The civil rights lawsuit was brought pro se (on his own) by Mr. Nicholas, a professional photojournalist, against Defendants William Bratton, Stephen Davis, Michael DeBonis, and the City of New York on December 8, 2015.  The suit alleges that Defendants violated Mr. Nicholas’ First and Fourteenth Amendment rights by revoking his NYPD issued press credential without due process and in retaliation for the content of his speech.

The Order and opinion out of the United States District Court for the Southern District of New York found that the government cannot pick and choose among which newsgatherers to allow access to a scene or to information and that the NYPD’s restriction on newsgathering may have violated the First Amendment. The court also found that journalists may very well have a First Amendment interest in their NYPD-issued press credential that calls for due process protections, and that the NYPD summary revocation of press credentials may have been without due process, violating the Fourteenth Amendment. Additionally, the court found that the city may have an unconstitutional unwritten policy to obstruct and interfere with newsgathering in general and with Mr. Nicholas’ newsgathering in particular.

See: Nicholas v. Bratton Opinion 02-27-17

 

Posted in Access, First Amendment, First Amendment rights, Motion to Dismiss, National Press Photographers Association, News Photography, Newsgathering, NPPA, NY Daily News, NYPD, photographers, Photographers' Rights, photojournalism, Press Credentials, Regulations limiting photography | No Comments »

Enact Commonsense Drone Rules

March 3rd, 2016 by Mickey Osterreicher and tagged , , , , , , , ,

Amidst all the hysterical reports that the sky is falling or it’s literally raining drones, Illinois Congressman Rodney Davis recently introduced a thoughtful Micro Drone amendment to the FAA Reauthorization Act (AIRR Act). The amendment would create a new “Micro UAS Classification” of Unmanned Aircraft Systems (UAS), improving safety, access and compliance while also encouraging innovation. For the first time, micro drones would be permitted for commercial purposes, appropriately advancing what many believe to be the smallest, safest and fastest-growing sector of the UAS community. The House Transportation & Infrastructure Committee very commendably voted to accept that amendment without any voiced opposition and then approved the entire AIRR Act, as amended.

It is crucial to note this legislation would not deregulate the use of UAS, but rather proposes regulations containing five commonsense rules that are easy to remember and follow. In fact, many of these rules already exist to oversee safe practices for the recreational use of drones. Under the new amendment, micro UAS (mUAS) would be required to operate at: “(1) less than 400 feet above ground level; (2) at an airspeed of not greater than 40 knots; (3) within the visual line of sight of the operator; (4) during daylight; and (5) at least 5 statute miles from the geographic center of an airport [with an exception for those who provide notice and obtain permission].”

In response to this legislative initiative the FAA announced the formation of an aviation rulemaking committee composed of industry stakeholders to develop recommendations for a similar regulatory framework. Representatives for a coalition of  more than a dozen news organizations (including NPPA) will participate as committee members.

Given the complicated and often-disregarded current FAA regulations for small UAS (sUAS), which includes every type of unmanned system under 55 pounds, we can only hope this bill will be enacted as approved and then implemented as quickly as possible. We believe that adopting the micro UAS rule will be far more effective in approving and regulating commercial use than waiting for a final FAA rule under the current Notice of Proposed Rulemaking, petitioning for a Section 333 Exemption, or operating a UAS “unlawfully” in fear of FAA enforcement action.

It is widely accepted that people are far more likely to abide by commonsense rules that impose the least burdensome restrictions. This is true for operators of small unmanned aircraft systems as well. The current proposed FAA requirements that are expected to be in place later this year include aeronautical knowledge testing on eleven topics, traveling to test facilities, and re-testing every two years—requirements that create high barriers for low-risk users, increasing the potential for widespread non-compliance.

The on-going restrictions on most sUAS uses are simply not sustainable or justifiable. Enacting a new category of mUAS subject to risk-based safety and operational restrictions will enable and enhance the safety of all aspects of UAS operations, including, but not limited to: newsgathering, educational, humanitarian and commercial use. It also will relieve the FAA from some of the administrative burdens of granting exemptions for low-risk operations, thus allowing the agency to focus its resources on the more challenging aspects of safely integrating UAS use into the national air space, which is another reason the FAA should immediately begin work to support mUAS approval.

Employing simple and familiar rules that already exist for recreational use and applying them to the smallest and safest UAS category, streamlines the process for everyone (including journalists) by encouraging a culture of safety and widespread voluntary compliance, while at the same time advancing innovation. Hopefully Congress will agree and pass an FAA reauthorization act that includes the mUAS amendment.

Mickey H. Osterreicher is general counsel for the National Press Photographers Association (NPPA) which is part of the News Media Coalition, advocating for the use of UAS for newsgathering. He has met with the FAA and congressional staff to discuss these issues as well as participated in stakeholder meetings held by the National Telecommunications and Information Agency regarding UAS privacy concerns.

Posted in drone, Drones, First Amendment, micro drones, National Press Photographers Association, News Photography, Newsgathering, NPPA, small unmanned aerial systems, sUAS, Visual Journalists | No Comments »

NPPA Files Comments with FAA Expressing Concerns over Drone Registration

November 18th, 2015 by Mickey Osterreicher and tagged , , , , , , ,

On November 17, 2015 the National Press Photographers Association (“NPPA”), joined by 10 other organizations submitted supplemental comments to the FAA regarding the unintended consequences of drone registration. The groups are concerned that a registration process requiring all drone operators to carry a certificate of registration with them, and produce it on demand to a federal, state or local police official, will be used by police and prosecutors in a pretextual way to chill free speech and freedom of the press. Journalists often encounter this type of interference. Police officers who do not like news coverage of an event often use vague charges like failing to obey a lawful order or interference with officers at an emergency scene to stop journalists.

The stated purpose of a registration and marking requirement is the safe integration of drones into the national airspace. The FAA has asserted one of the ways to insure that is to have a means to identify and track the drone to its operator. The groups believe that requiring a drone operator to produce papers on demand will not aid in drone safety.

Writing for the group, NPPA general counsel Mickey H. Osterreicher, expressed the concern “with these unanticipated and unintended consequences which illustrate how government, and particularly law enforcement, can use discretionary laws to suppress speech activities in ways that were not considered at the time of their enactment. To pass constitutional muster and forestall constitutional conflicts between journalists and law enforcement officers, any registration system, must contain provisions that preclude officers from demanding to see journalists’ registration papers, and to then detaining, fining, or seizing property from journalists who are not carrying such documentation with them.”

The American Society of Media Photographers, American Society of News Editors, Associated Press Media Editors, Associated Press Photo Managers, The McClatchy Company, North Jersey Media Group, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Society of Professional Journalists and the Student Press Law Center joined in the filing.

 

 

Posted in drone, Drones, FAA, First Amendment, First Amendment rights, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Regulations limiting photography, Unmanned Aerial Vehicle (UAV) | No Comments »

NPPA Files Comments As Part of News Media Coalition Regarding FAA Drone Registration

November 7th, 2015 by Mickey Osterreicher and tagged , , , , ,

In response to a Request for Information from the FAA, the NPPA, as part of a News Media Coalition (NMC) filed Comments on November 6, 2015, regarding Unmanned Aerial Systems (UAS) registration,

According to Charles D. Tobin of Holland & Knight, LLP on behalf of the 17 news organizations and associations, “the News Media Coalition has stressed, and the government has acknowledged, that the First Amendment rights of the public in receiving news and information in the public interest, and the media in gathering that news and information, must be preserved in the regulation of any new technology, including UAS.”

With that overriding principle in mind the NMC went on to “strongly urge the FAA to require registration at the point-of-sale with registration information submitted by the seller, rather than the end-users,” to avoid an overly burdensome and costly process.

The coalition also advised that the  “FAA should only require the submission of the limited contact information from users necessary to ensure accountability” and “to avoid unnecessary administrative burdens and bureaucratic delays, registration should be web-based [with] information about the registration should be available in an easy-to-use and searchable online database that provides access consistent with that provided by the FAA for other aircraft registration.”

Additionally, “operation of UAS should be permitted upon submission of registration information, rather than awaiting affirmative approval or imposing a waiting period before a UAS may be legally operated. Any delay or additional affirmative steps could restrict an otherwise qualified UAS operator from exercising her First Amendment rights” and that “there should not be any fees—for users or sellers—to file UAS registrations with the FAA.

The group went on express its concern about registration requirements that operators file detailed flight plans with the FAA because it “would not meaningfully contribute to safety “make it virtually impossible to use UAS for breaking news stories.”

Should the FAA adopt special rules for micro UAS (under 2.2 lbs.) the group believes they should be exempt from registration requirements because “collection of such information would be overly burdensome to users and to the FAA and, given micro UAS operational limitations and safety benefits.”

Finally, in order to encourage accountability and responsible use of UAS, the NMC urged the FAA to expedite a clear commonsense final small UAS rule and utilize stakeholders (such as those in the coalition) to “help better educate UAS operators, including hobbyists, regarding current regulations and best practices for safe UAS operation.”

Members of the News Media Coalition include: Advance Publications, Inc., A.H. Belo Corp., American Broadcasting Companies, Inc., The Associated Press, Capitol Broadcasting Co., Cox Media Group, LLC, Fusion Media Network, LLC, Gannett Co., Inc., Getty Images (US), Inc., National Press Photographers Association, NBCUniversal Media, LLC, The New York Times Company, Reuters, The E.W. Scripps Company, Sinclair Broadcast Group, Inc., TEGNA, Inc., and WP Company LLC.

Posted in drone, Drones, FAA, First Amendment, First Amendment rights, Getty Images, National Press Photographers Association, New York TImes, News Photography, Newsgathering, NPPA, small unmanned aerial systems, sUAS, UAS, Washington Post | No Comments »

NPPA Joined by 32 Other Media Groups Urges Gov. Brown to Veto CA Anti-Drone Bill

September 3rd, 2015 by Mickey Osterreicher and tagged , , , , , , ,

Today the National Press Photographers Association (NPPA) sent a letter to California Governor Jerry Brown urging him to veto SB 142, which would create strict liability for anyone operating a drone over the “airspace overlaying the real property” of another person or entity without “express consent.” The letter was joined by 32 other media organizations.

“We believe this bill will unduly restrict the development of new uses for Unmanned Aircraft Systems (UAS) by establishing a technology-specific restriction that is impossible to comply with, impossible to enforce, and likely will conflict with the existing authority and proposed new regulations of the Federal Aviation Administration (FAA), said NPPA general counsel Mickey H. Osterreicher, in the letter. He went on to say, “while the bill acknowledges the FAA Modernization and Reform Act of 2012, its language flies in the face of both common sense and federal preemption,” adding “the chilling legal repercussions of this bill will tax an overburdened court system and thwart the federal government’s efforts, in which we are participating, to bring about a sensible regulatory regime for this new technology.”

Those groups joining in the letter are: Advance Publications, Inc., American Society of News Editors, Associated Press Media Editors, Associated Press Photo Managers, Association of Alternative Newsmedia, CNN, First Look Media, Inc., Gannett Co., Inc., Hearst Corporation, KBAK-TV (Bakersfield), KERO-TV (Bakersfield), KGTV-TV (San Diego), KMPH-TV (Fresno), KXTV-TV (Sacramento), Los Angeles Times Communications LLC, Merced Sun-Star, Newspaper Association of America, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Scripps Media, Society of Professional Journalists, Student Press Law Center, The Associated Press, The Desert Sun, Palm Springs, The Fresno Bee, The McClatchy Company, The Modesto Bee, The Sacramento Bee, The Salinas Californian, The (San Luis Obispo) Tribune, Tulare Advance-Register and Visalia Times-Delta.

 

Posted in Access, broadcasting, California, drone, Drones, First Amendment, First Amendment rights, Newsgathering, photographers, photojournalism | No Comments »

Judge Orders Sanctions Against Atlanta Police Department for Obstructing Filming Police Conduct

May 14th, 2015 by Mickey Osterreicher and tagged , , , , , ,

ATLANTA– On May 13, 2015, United States District Judge Steve C. Jones found the City of Atlanta in contempt of court and imposed sanctions for the city’s failure to comply with obligations set forward in a prior Court Order on behalf of a woman whose constitutional rights were violated when she was arrested as she peaceably photographed police activity in 2009.

The Southern Center for Human Rights, along with Atlanta based attorneys Daniel J. Grossman and Albert Wan, presented arguments on April 28, 2015, for civil contempt sanctions against the City of Atlanta in Anderson v. City of Atlanta, et al. The plaintiff, Felicia Anderson, brought this case against the City of Atlanta and one of its police officers for falsely arresting her as she photographed police arresting her neighbor. The parties ultimately reached a settlement on Ms. Anderson’s claims in 2012. In addition to damages, the parties agreed to a Consent Order requiring the City of Atlanta to permanently revise and implement a number of APD policies and trainings that would set strict limits on officer’s interference with citizens documenting police activity.

In November 2014, several reporters covering the Ferguson demonstrations in downtown Atlanta had their cameras taken away from them by APD officers as these individuals attempted to film police activity. One of them was a photojournalist for 11Alive News, whose arrest by police officers during his coverage of the protests has been the subject of numerous news stories. Another was a reporter for Creative Loafing; Atlanta police officers intentionally stopped him from taking photos during the protest, grabbed his camera, and then arrested him, even as he and his editor repeatedly told the officers that he was a reporter. These are but a few examples of the actual damage that came to light as a result of the City’s failure to abide by this Court’s order, including interference with citizens and reporters filming police.

Judge Jones stated, “The Court finds Defendant in contempt for violating the March 2012 Order… and it now imposes sanctions to bring Defendant into full compliance and to address future monitoring of Defendant’s compliance with the Order.”

“The Court has now found the City in contempt based, in part, on the City’s own admissions that it failed to comply with the Court’s Order,” said attorney Albert Wan. “ The next few weeks and months will be telling. Will the City treat the Court’s order with the seriousness it deserves, or will it revert back to its old ways? All eyes are on the City to see what it will do, and they should be. As recent events have shown, the public’s right to document police conduct is an important one, and the City needs to recognize that. It can start by fully complying with the Court’s Order.”

Judge Jones ordered the following:
• Permanently implement the revisions to the Atlanta Police Department Standard Operating Procedures set forth in the Court’s March 2012 Order
• Conduct mandatory, in-person training of all Atlanta police officers every two years regarding the Standard Operating Procedure revisions set forth the Court’s March 2012 Order
• Within forty-five days, the Chief of the Atlanta Police Department shall issue a Command Memorandum to each APD officer attaching a copy of the 2012 Consent Order, requiring that it be read and signed. The City of Atlanta shall provide the Court and the Plaintiff with a sworn statement attesting that this has been accomplished within ten days after the 45-day period of compliance has expired. The City of Atlanta shall be fined $10,000 per day after the 45-day period of compliance has expired if the City of Atlanta fails to comply.
• Within forty-five days, the City of Atlanta shall provide in-person, roll call training consistent with the industry standard to every police officer of the Atlanta Police Department on every revision to the Atlanta Police Department Standard Operating Procedures required under the March 2012 Order. The Atlanta Police Department is required to video solely this portion of the Atlanta Police Department’s in-person, roll call training. The City of Atlanta must provide Plaintiff’s counsel with a copy of each video within ten days of the in-person, roll call training. The City of Atlanta shall be fined $10,000 per day after the period of compliance has expired if the City of Atlanta fails to comply.
• The City of Atlanta, within five days, must report to the Court and Plaintiff any revisions made to the Standard Operating Procedures (SOP) at issue in the 2012 Consent Order.
• The City of Atlanta will reimburse Plaintiff’s counsel for a portion of fees and costs associated with ensuring compliance with the Court’s Order.

“Almost every week we see the crucial importance of citizen video as a tool for police accountability. It is a shame that City Hall fought against this for almost six months, and that it took a federal judge to hold the city in contempt and order it to provide the training that even Atlanta’s police officers themselves were asking for,” said attorney Daniel J. Grossman.

“It should not have taken over three years for the Atlanta Police Department to respect citizens’ rights to video police conduct as required by Judge Jones order. The Court has shown, and the national conscience has shown, that cameras are an important tool in ensuring police are held accountable,” said Southern Center for Human Rights attorney, Gerald Weber.

To read the Contempt Order go to: Atlanta Contempt Order – Anderson 05-13-15

Posted in Access, Atlanta Police Department, First Amendment, First Amendment rights, News Photography, Newsgathering, photographers, Photographers' Rights, photojournalism, Police, Recording Police | No Comments »

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