*** UPDATE *** In the wake of opposition from NPPA and other groups the CA Assembly Judiciary Committee made both AB-1256 and AB-1356 “2 year bills.” A 2 year bill is one which will not move out of the policy committee this year. It is eligible to be taken up again at the beginning of the 2nd year of the biennial session thus the term “2 year bill.” In January, the Legislature will hear all bills introduced in the 1st year and those that pass muster will begin to move through the process. This is very significant because every other anti-paparazzi bill that has been introduced has flown through the Legislature. This is the first time one has been held up. While the AB-1256 and AB-1356 are not dead, this indicates the sponsors may have a difficult time getting out of Judiciary in January.

The National Press Photographers Association (NPPA) today sent a letter to California Assembly Member Richard Bloom opposing two recently filed anti-paparazzi statutes that he sponsored. The NPPA was joined by twenty-six other organizations in sending this letter, including the Associated Press Media Editors, Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society, Bloomberg News, North Jersey Media Group Inc., The New Yorker, E.W. Scripps Company, The New York Times, The Los Angeles Times, Society of Professional Journalists, Radio Television Digital News Association, The Associated Press, National Public Radio, Inc., The McClatchy Company, Reuters News, Time Inc., The Washington Post, Reporters Committee for Freedom of the Press, Picture Archive Council of America, Cox Media Group, American Society of News Editors, California Newspapers Partnership, The First Amendment Coalition, Courthouse News Service, The Newspaper Guild, Communications Workers of America, Association of Alternative Newsmedia and San Francisco Bay Media Associates.

The letter is written in opposition to proposed bill AB-1256, “An act to amend Section 1708.8 of, and to add Section 1708.9 to, the Civil Code, relating to civil law.” Proposed bill AB-1256 would expand upon California’s constructive invasion of privacy law. The letter also expresses opposition to AB-1356, “An act to amend Section 1708.7 of the Civil Code, relating to stalking,” which would enhance California’s anti-paparazzi statutes.

“We believe the creation of a civil cause of action for the “constructive invasion of privacy” is overly broad and vague and imposes greater civil penalties upon otherwise protected forms of speech and expression,” wrote Mickey Osterreicher, general counsel for NPPA. Osterreicher continued, “We are also concerned that remedies for invasion of privacy and trespass are already properly addressed by current California statutes and that statutory and punitive damages will further chill free speech and create uncertainty about liability.” “Additionally,” stated Osterreicher, “the definition of “commercial purposes” fails to distinguish those acts done for valid newsgathering purposes and in fact penalizes publishers and broadcasters along with visual journalists and members of the public with a camera.”

In the letter Osterreicher cites recent Supreme Court cases which support NPPA’s position that AB-1256 and AB-1356 are unconstitutional, including U.S. v. Stevens, 559 U.S. ___, 130 S. Ct. 1577 (2010) (holding the Animal Crush Video Prohibition Act of 2010 unconstitutional); California v. Superior Court of California (Raef), Case No. BS140861 (holding California statute AB-2479, an anti-paparazzi statute, unconstitutional); and Branzburg v. Hayes, 408 U.S. 665 (1972) (holding that “without some protection for seeking out the news, freedom of the press could be eviscerated”).

In another related matter a California assembly member withdrew his proposed “ag-gag” bill hours before it was to be considered at a scheduled hearing.

The measure, AB-343, sponsored by Jim Patterson, R-Fresno, originally imposed a “duty to report animal cruelty” that would have required “any person who willfully or knowingly photographs, records or videotapes animal cruelty . . .” to “submit all original photographs, recordings or video to local law enforcement and the owner of the animal(s) or a representative of the owner within forty eight hours of taking such photographs, recordings or video.”

NPPA and other groups opposed the bill as violating the Shield Law provisions of the California Constitution and Code of Evidence; as well as being unconstitutional under the First, Fourth, Fifth and Fourteenth Amendments in that it abridged free speech and press and constituted an unreasonable seizure lacking in due process.

“The NPPA is very proud to have the support of so many state and national organizations in its fight against these ongoing First Amendment erosions,” said NPPA President Mike Borland. “We hope that lawmakers around the country will realize that there is a better way to address their constituent’s concerns than to propose unconstitutional bills,” he added.

Once again, a law enforcement agency has instructed its officers to equate photography with terrorism, and the NPPA has responded. The NPPA was joined by a coalition of other media and photography organizations this week in a letter to Chief Charles Beck, of the Los Angeles Police Department, including the American Society of Media Photographers (ASMP), the Society of Professional Journalists (SPJ), the Los Angeles Times, the Radio Television Digital News Association (RTDNA), the Press Photographers Association of Greater Los Angeles (PPAGLA), the Society of Professional Journalists – Greater Los Angeles Chapter (SPJ-LA) and the Reporters Committee for Freedom of the Press (RCFP).

The LAPD recently issued guidelines instructing their officers on “behavior/activity that may reveal a nexus to foreign or domestic terrorism.” Such behavior listed includes:

“Taking pictures or videos of facilities/buildings, infrastructures, or protected sites in a manner that would arouse suspicion in a reasonable person.  Examples include taking pictures or videos of ingress/egress, delivery locations, personnel performing security functions (e.g., patrol, badge/vehicle checking), security-related equipment (e.g., perimeter fencing, security cameras), etc”

In the letter, NPPA General Counsel, Mickey Osterreicher explained to Chief Beck:

“Photography is protected by the First Amendment, subject only to reasonable time, place and manner restrictions. Unfortuately the reliance on policies such as the LAPD’s as the basis for law enforcement officers to question, detain and interfere with lawful activities by photographers under the guise of preventing terrotist activites has become a daily occurrence.”

Osterreicher added that this “erroneous belief is only reinforced by these specific references to photography as possibly being part of some sinister act,” noting that the guidelines are “overly broad and vague and helps foster a climate of fear and suspicion”

The NPPA offered to work with the law enforcement agency to help develop more reasonable policies regarding photography, asking that any reference to photography be removed from the guidelines.

The National Press Photographers Association (NPPA) received clarification from Pikes Peak International Hill Climb (PPIHC) today regarding PPIHC’s credentialing process for photographers and its policy on copyright ownership of photographs taken at the event.

PPIHC’s clarification comes in response to a letter sent by the NPPA yesterday after photographers had expressed concerns over PPIHC photograph policies.

“I have received a number of inquiries from members concerned about the language and terms set forth in this agreement and I have my own questions regarding the applicability and propriety of these requirements and ‘grant of rights’ as they pertain to photojournalists,” said Mickey H. Osterreicher, general counsel for NPPA.

PPIHC’s “Photo Rights Agreement” states that “PPIHC owns the rights to any photos taken and copies of the photos will be provided to the Pikes Peak International Hill Climb upon request.”  The agreement further states that there is a $250 fee to obtain “2012 photo rights.”

Neither PPIHC’s photo rights agreement nor its official media guide makes a distinction between commercial and media photographers in regards to credentials and fees.  In a conversation with Osterreicher, a PPIHC spokesperson explained that the photo rights agreement does not apply to photojournalists, but only to photographers who sell their photos to the public.

Osterreicher said that, while it is encouraging that PPIHC will not charge photojournalists or assume ownership over their photos, the fact that the agreement applies to “non-commercial” photography may still confuse photographers, who typically associate the term with editorial photography.  Osterreicher also expressed concern that freelance photographers may be denied credentials, as the PPIHC credential application states that accreditation may only be issued to “approved” news organizations.

Though the application period for obtaining media credentials closed in June, PPIHC has expressed the intent to reopen the credentialing process in light of the race’s rescheduling due to the recent and widespread Colorado wildfires.  Osterreicher said that the rescheduling offers an opportunity for race organizers to clarify their policy in a way that prevents confusion and encourages access for photographers, which in turn will benefit the PPIHC with more media coverage.

According to its website, the PPIHC is the second oldest motor sports race in America.  NPPA attorney Alicia Calzada said that a general concern stemming from events such as PPIHC, which largely takes place on public roads, is that their organizers place restrictions on photography although the event is taking place in a public place where anyone has a right to take pictures.

“No permit should be needed to take pictures from public streets and sidewalks- although given safety issues inherent in racing, local police can certainly impose reasonable time, place and manner restrictions on these places,” Calzada said.

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.

The first two in a series of so-called “Ag-Gag” bills has been enacted into law. The bills, different versions of which have been pending in over half a dozen states, target animal rights activists but frequently are written in broad language that impacts other lawful First Amendment activity.

Iowa was the first state to pass a bill, in early March, making access to an agricultural facility by “false pretenses” illegal. It was heavily amended from its original version. The introduced version of the bill would have made recording while on the farm without the consent of the owner a misdemeanor (and a felony for a second offense) and made mere possession of photographs or video resulting from the earlier act a crime. Thankfully, that version did not pass- it would have been easily found unconstitutional. To put this into perspective, the only other category of photography that is a crime to possess is child pornography. In fact, just a couple of years ago, the Supreme Court ruled that it was unconstitutional to criminalize the possession of video depicting animal cruelty.

A bill making photography of farm operations without the consent of the owner illegal has passed in Utah. The Utah state senate passed HB 187 and it is headed to the governor for a signature. An amendment was made after the NPPA and several other groups protested the original language of the bill. The bill makes it a crime to photograph “agricultural operations” without consent of the owner.  There was no distinction in the original version of the bill for private vs. pubic property, and the wording left open the possibility prosecution for photographing animals grazing on public lands. The bill was amended to clarify that “agricultural operations” is “private property” and passed with that language. However the bill is still problematic as it takes a crime- trespassing- and makes it subject to a greater punishment (a Class A misdemeanor vs. a Class B misdemeanor) because the added element of a First Amendment activity is involved.

A bill pending in New York, would criminalize the “unauthorized video, audio recording or photography done without the farm owner’s written consent.” Like certain proposals NPPA objected to in the last, there is not even a limitation in this bill that the photographer be trespassing. As written, it would be a misdemeanor, punishable by up to a year in prison, or a fine of $1,000 to stand on the side of the road and photograph farm animals or farm.

Even bills which makes it a crime to take photographs on a farm while trespassing are problematic because an essential element of the crime is photography. It is a content-based restriction (with a specific list of what would be in the photograph that would convert an otherwise law abiding photographer into a criminal).

The application of these laws to photographic activity will be subject to constitutional scrutiny. NPPA will continue to monitor and oppose these bills as we have done in the past.

NPPA is drafting a model release for photographers in Utah and Iowa to bring to assignments on property that could be considered an agricultural operation, or otherwise subject to this law.

If you are aware of pending legislation that would affect photographers, please alert us at advo...@nppa.org or law...@nppa.org.

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)

The National Press Photographers Association (NPPA) has submitted comments to the Illinois General Assembly in support of House Bill 3944. Spoinsored by Rep. Elaine Nekritz, the proposed legislation (among other things) “amends the Illinois Criminal Code and exempts from an eavesdropping violation the recording of a peace officer who is performing a public duty in a public place and speaking at a volume audible to the unassisted human ear.” 

The current Illinois Wiretap Law makes it a felony (with a penalty of up to 15 years in jail) to audio record a police officer in public without consent regardless of whether a reasonable expectation of privacy exisited.

The NPPA is extremely concerned that the criminal penalties under the Illinois Eavesdropping Act, 720 ILCS 5/14 (“the Act”), as applied to the audio recording of police officers, has created a chilling effect upon free speech and a free press, particularly for photojournalists, who by the very nature of their profession must operate on the front lines of news, in the middle of sometimes highly charged situations.

NPPA joined in the amicus curiae brief in ACLU v. Alvarez, submitted by news organizations in support of the ACLU position seeking a declaratory judgment and a preliminary injunction against the application of the Act because it violates the First Amendment. Regardless of the Seventh Circuit decision in that case, which in any event may likely be appealed, NPPA is deeply concerned that daily coverage of news events, Occupy Chicago protests and the upcoming G-8 Summit may put those seeking to record these important matters of public concern at risk because of the continued enforcement of the Act. It especially disconcerting for us to think that foreign journalists covering the Summit meeting may be subject to arrest and prosecution for doing something they understandably believe to be a Constitutionally protected right throughout the United States.

In a time of technology and terrorism, citizens and photojournalists throughout the world have risked, and in some cases given their lives, to provide visual proof of governmental activities. Sadly, what is viewed as heroic abroad is often considered as suspect or criminal at home. It is therefore incumbent upon the 97^th General Assembly of the State of Illinois to immediately enact H.B. 3944.