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Ninth Circuit: Photojournalist’s Access is a “Fundamental Constitutional Right”

February 16th, 2012 by Alicia Calzada and tagged , , , , , , , , , , , ,

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)

Posted in Access, Cameras, Federal Court, First Amendment, First Amendment rights, Legal, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism, Regulations limiting photography, Street Photography | 52 Comments »

Update: NYPD to Remind Officers of Media’s Rights at 10 Consecutive Roll Calls

November 23rd, 2011 by Alicia Calzada and tagged , , , , , , , , , , ,

After meeting on Wednesday with several media attorneys, including NPPA general counsel Mickey Osterreicher, NYPD Commissioner Raymond Kelly ordered that a “Finest” message be disseminated reminding officers of their obligations to cooperate with the media. The message will be read at 10 consecutive roll calls citywide.

“I’m pleased to see such a swift response from the Commissioner, of course this is just the first step in ensuring that this doesn’t happen again,” said Osterreicher. “We expect more to be done in the near future to help improve police-press relations which have devolved so significantly.”

The Finest message highlights various guidelines that instruct police on how to deal with the media, including that “Members of the service will not interfere with the videotaping or the photographing of incidents in public places. Intentional interference such as blocking or obstructing cameras or harassing the photographer constitutes censorship. Working Press Cards clearly state the bearer ‘is entitled to cross police and fire lines.’ This right will be honored and access will not be denied.”

The message also states: that “Members of the service who unreasonably interfere with media access to incidents or who intentionally prevent or obstruct the photographing or videotaping of news in public places will be subject to disciplinary action.”

The meeting on Wednesday came after a letter was sent by media organizations on Monday complaining about the way police mishandled the media during last week’s “eviction” of Zuccotti Park, the home of months of Occupy Wall Street protests. Police officers arrested several journalists and also used force against several journalists during the raid.

Read the entire contents of the planned  NYPD Finest message, as it was provided to the NPPA.

 

 

Posted in Cameras, First Amendment, mass media, National Press Photographers Association, NPPA, NYPD, Photographers' Rights, photojournalism, Police, Public Photography, Recording Police, Street Photography, Uncategorized | 32 Comments »

Media Groups Join NPPA to Protest Police Mistreatment of Press During NYC – OWS Protests

November 21st, 2011 by Alicia Calzada and tagged , , , , , , , , , , ,

New York – The National Press Photographers Association was joined by several media organizations and the Reporters Committee for Freedom of the Press in a letter to the NYPD Deputy Commissioner of Public Information, Paul J. Browne, to protest police mistreatment of the the media during the Occupy Wall Street protests last week. The strongly worded letter drafted by NPPA general Counsel Mickey H. Osterreicher along with New York Times vice president and assistant general counsel, George Freeman, pointed out that “credentialed media were identified, segregated and kept away from viewing, reporting on and photographing vital matters of public concern. A press pen was set up blocks away and those kept there were further prevented from seeing what was occurring by the strategic placement of police buses around the perimeter. Moreover, there have been numerous instances where police officers struck or otherwise intentionally impeded photographers as they were taking photos, keeping them from doing their job and from documenting instances of seeming police aggression.”

The letter outlines several specific incidents in which members of the media were physically assaulted by police. It also describes how members of the media were ordered to leave public areas, stripped of their credentials, threatened with arrest, detained and arrested.

During an August 2011 meeting Browne had promised to review previous media complaints regarding other incidents involving police interference with the media and his agreement to consider additional training to reinforce media guidelines, for newer officers on the force.  Browne had agreed at the time that additional training for officers would be beneficial. The media representatives who authored the letter expressed their belief  “that had such agreed upon training occurred, it may have helped avoid the numerous inappropriate, if not unconstitutional, actions and abuses the police heaped upon both credentialed and non-credentialed journalists in the last few days.”

A companion letter was sent by the New York Civil Liberties Union to New York City Mayor, Michael Bloomberg making similar complaints. Both groups have asked for a meeting with the police in order to address these issues.

Read the complete letter here:DCPI Letter – Signed 11-21-11

Update:

See articles by the New York Press Club. and the Associate Press.

 

Posted in broadcasting, First Amendment, First Amendment rights, law, Legal, mass media, multimedia, National Press Photographers Association, News Photography, NPPA, NYPD, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording Police, video cameras | 13 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 | 47 Comments »

City of Ft. Lauderdale Agrees to Uphold Right to Take Pictures in Public

June 21st, 2011 by Alicia Calzada and tagged , , , , , , , , , , , , , ,

The City of Ft. Lauderdale agreed on Monday not to interfere with photographers taking pictures near the set of the film “Rock of Ages.” At an emergency hearing in state court, the NPPA joined the South Florida Gay News and the Society of Professional Journalists as plaintiffs against the City, which had erected signs banning photography in public areas near a movie set. According to area photographer and activist Carlos Miller, at least one photographer was issued a citation for taking pictures from a public garage.

The Agreed Court Order states that the city:

“shall not prohibit or inhibit the taking of photographs at or from any public area surrounding, near or adjacent to the film set of the production of the film, “Rock of Ages. For the purposes of this order, the term “public area” shall includ any area where members of the public have a right to be, but shall not include areas that have been lawfully closed to access by members of the public.”

The movie, starring Tom Cruise and Catherine Zeta-Jones is being filmed in downtown Ft. Lauderdale, and the city had posted several signs in public areas stating that photography was strictly prohibited, even though those same areas were open to the public.

Some area photographers staged a protest on Friday drawing publicity to the illegal ban, and news organizations reported that the signs were removed, but police were still enforcing the ban.

According to the Gay South Florida News, one of the other plaintiffs in the suit, the city denied that it was interfering with the right to take pictures. However, the plaintiffs offered to provide witnesses to the contrary.

Though the injunction is in place, the plaintiffs intend to proceed with the lawsuit seeking a declaration that the city acted illegally.

A detailed report of hearing along with pictures, is available at the website www.journoterrorist.com.

NPPA will continue to provide updates as the lawsuit progresses.

The Agreed Order can be downloaded by clicking here.

Posted in Access, First Amendment, Florida, law, photographers, photojournalism, trespass | 119 Comments »

U.S. Supreme Court Finds in Favor of Funeral Protesters, Protecting Speech

March 2nd, 2011 by Alicia Calzada and tagged , , , , , , , ,

By Mickey H. Osterreicher, NPPA General Counsel

This morning the U.S. Supreme Court issued an 8-1 decision in Snyder v. Phelps, holding that the First Amendment shields Westboro Baptist church protesters “from tort liability for its picketing” of Marine Lance Corporal Matthew Snyder’s funeral after he was killed in Iraq in 2006. It was a case that found media groups (including NPPA) having the dubious duty of filing an amicus brief supporting the protesters First Amendment rights no matter how distasteful/abhorrent the message.

The case arose when some of the congregants of the Westboro Baptist Church, who have picketed military funerals for over 20 years based upon the belief that G-d hates the United States for its tolerance of homosexuality, particularly in the military, went to Maryland to voice their protest. According to the record, “the picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers.” The picketers peacefully displayed signs containing various condemnations prior to the funeral where Matthew Snyder’s father, who is the petitioner in this case allegedly “saw the tops of the picketers’ signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.”

The elder Snyder then filed a federal suit alleging among other things “state tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.” A jury found Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages. Westboro appealed. The lower court reduced the punitive damages award, but let the remainder of the verdict stand. On appeal the Fourth Circuit reversed, finding that “Westboro’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.”

Attorney Marjorie Phelps, daughter of Westboro Baptist Church Pastor Fred Phelps, on the steps of the U.S. Supreme Court moments after arguing the case on behalf of her church. Photo by Mickey Osterreicher.

In the opinion, written by Chief Justice Roberts, the Court found that the First Amendment insulated the protesters actions from the Snyder’s claims for intentional infliction of emotional distress; that the claim for intrusion upon seclusion was not supported by the facts where the protesters did not cause any “interference with the funeral itself;” and, because those two claims failed there could be no claim for civil conspiracy.

What is important to note is that the case was decided along its limited facts concerning the actual protest at the funeral, declining to address the issue of an allegedly hurtful Internet posting on the church’s website, found by Snyder after the funeral.

Chief Justice Roberts also noted in the opinion “[g]iven that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.”

The Court pointedly stated, “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.”

The Chief Justice concluded “[s]peech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.”

Justice Breyer filed a concurring opinion acknowledging the limitations of the Court’s holding that it did not protect all activity focused on matters of public concern. Justice Alito was alone in his dissent, writing that “[o]ur profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”

In an amicus brief, the NPPA along with 21 other news organizations argued that “far more is at stake in this case than the ability of the Westboro Baptist Church to protest near military funerals. This case concerns an issue critical to a wide range of speakers, including members of the news media: whether a plaintiff may recover for intrusion and intentional infliction of emotional distress where the harm is based upon the publication of controversial speech about matters of public concern.”

Robert Corn-Revere of Davis Wright Tremaine LLP in Washington, D.C. drafted the amicus brief on behalf of the media.

The brief further noted that “[m]ost reasonable people would consider the funeral protests conducted by members of the Westboro Baptist Church to be inexplicable and hateful.” “Without a doubt, the church’s message of intolerance is deeply offensive to many, and especially so to gay Americans, Catholics, veterans, and the families of those who sacrificed their lives defending the United States. But to silence a fringe messenger because of the distastefulness of the message is antithetical to the First Amendment’s most basic precepts.” As an expression of the conflict inherent in this case the brief stated “[t]his case tests the mettle of even the most ardent free speech advocates because the underlying speech is so repugnant. However, the particular facts of this case should not be used to fashion a First Amendment exemption for offensive speech.”

Mickey Osterreicher signed onto the amicus brief on behalf of the NPPA and attended the oral argument held before the High Court on October 6, 2010.

Posted in First Amendment, law, Legal, Uncategorized | 70 Comments »

Is Your Internship Legal?

May 22nd, 2010 by Alicia Calzada and tagged , , , , , , , , , , , , , , ,

With the school year wrapping up, another Internship season is upon us. So I thought it might be worth re-hashing an issue that I posted on my personal blog a couple of months ago about labor laws and free internships. Here it is:

You need an internship. Companies love having interns because it lightens the work load, they get to nurture and identify young talent and it supports the industry to train future photographers.

There is an interesting article in the New York Times about the expanding trend of unpaid internships and the reality that some unpaid internships violate federal wage laws.

I also found a useful evaluation at this link.

One of the big concerns is that unpaid internships are being used to replace paid workers in this economic recession. This is certainly true in the photojournalism world.

Some states require that an intern receive school credit in order to be eligible as an unpaid intern.

The Department of Labor has provided a set of guidelines to determine whether someone is a trainee, entitled to not being paid (this is relevant for Fair Labor Standards Act- i.e., whether or not minimum wage laws are being violated).

There is also a report by the Economic Policy Insitute on the trends and need for reform for internships.

According to the DOL, there are six factors used for determining if someone is an employee or trainee:

1. The training, even though it includes actual operation of the facilities of the
employer, is similar to what would be given in a vocational school or academic
educational instruction;
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their close
observation;
4. The employer that provides the training derives no immediate advantage from the
activities of the trainees, and on occasion the employer’s operations may actually
be impeded;
5. The trainees are not necessarily entitled to a job at the conclusion of the training
period; and
6. The employer and the trainees understand that the trainees are not entitled to
wages for the time spent in training.

“If all of the factors listed above are met, then the worker is a “trainee”, an employment
relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply to the worker.”

This does not affect non-profits using volunteers.

You may think this is overkill when you have a student willing to work for free in exchange for valuable experience, but this is extra important for photographers because the consideration of whether someone is an employee is also important for consideration of who owns the copyright. Also, if there is an on-the-job injury or a sexual discrimination case, employment status is extremely important.

Do you want to know if the free internship program at your paper is in compliance with the law? To be sure, better ask your corporate counsel.

Posted in business, contracts, interns, photographers, photojournalism, students | 12 Comments »