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NPPA, Joined by Other Media Groups Files Comments Objecting to Fairfax County, VA Photo Permit Fees

February 5th, 2015 by Alicia Calzada and tagged , , , , , , , , ,

Yesterday, the National Press Photographers Association (NPPA), joined by twelve other news and photographers’ organizations and First Amendment advocacy groups, filed comments with the Fairfax County Park Authority strongly objecting to their proposed permit and fee structure.

The proposed scheme would require all professional photographers to obtain a “professional photography permit”. Further, the permit would take 5 days to process, making it nearly impossible for news photographers to obtain one in time for most news situations, for which there is little to no warning.

The comments, authored by NPPA general counsel, Mickey Osterreicher, explains that “the proposed rules, create an unnecessary and burdensome distinction between amateur and professional photographers. Whether the images being made and recorded are for journalism, weddings or any other type of photography/filming (hereinafter “photography”), distinguishing between professional photographers and amateurs who are doing precisely the same things, at the same times, and in the same places, is arbitrary, capricious and unconstitutional.”

NPPA has always argued that permits in parks should only be required if the photographer’s presence would create a disruption. As the comments explained, “We believe that the proper question to ask is whether the photography creates any unusual impact on the land. If the activity presents no more impact on the land than that of the general public, then it should be exempt from permit and fee requirements.”

In the submitted comments Osterreicher went on to explain that, “unfettered access is necessary in coverage of the important public policy issues that arise in the conservation and use of public park resources. Journalists should be free to report to the public on public issues from public lands at any time. That protection should extend not only to individuals traditionally identified as newsgatherers, but also for freelance visual journalists and members of the public who may use cameras on a speculative basis to photograph or film activities on public lands without having an assured media outlet for their work.”

The other groups joining in the letter were: the American Photographic Artists, the American Society of Media Photographers, the American Society of News Editors, the Associated Press Media Editors, the Association of Alternative Newsmedia, the Graphic Artists Guild, the North American Nature Photography Association, PACA Digital Media Licensing Association, the Radio Television Digital News Association, the Reporters Committee for Freedom of the Press, the Society of Environmental Journalists, the Society of Professional Journalists and the White House News Photographers Association.

 

Posted in Access, American Society of News Editors, First Amendment, First Amendment rights, National Press Photographers Association, Newsgathering, NPPA, Permits, photographers, Photographers' Rights, photojournalism, Public Photography, Regulations limiting photography, Reporters Committee for Freedom of the Press, White House News Photographers Association, WHNPA | No Comments »

Important Info for Those Covering Ferguson

November 23rd, 2014 by Mickey Osterreicher and tagged , , , , , , , , , , , , , ,

For all NPPA members and visual journalists in Ferguson, Missouri – Please print out the federal court orders below and keep them with you at all times.

Also please contact NPPA general counsel Mickey Osterreicher if you are interfered with or arrested. You may call or text his cell: 716.983.7800 or email lawyer@nppa.org.

You may also call 800.336.4243, which is the Reporters Committee for Freedom of the Press Legal Defense Hotline.

County Order

Highway Patrol Order

Ferguson Order

Posted in Access, Ferguson, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Recording Police, Reporters Committee for Freedom of the Press, Visual Journalists | 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 »

NPPA, Other Media Groups Submit Comments to FAA in Support of Exemptions for Use of sUAS

July 16th, 2014 by Mickey Osterreicher and tagged , , , , , , , , , , , , , , ,

Today the NPPA filed comments with the FAA in support of petitions from a number of aerial photo and video production companies seeking exemptions to commercially operate small unmanned aerial systems (sUAS – 55lbs or less) for motion picture and television industry use. The NPPA also joined in the analysis submitted as part of the News Media Coalition’s Comments in Support of Video-Production Companies’ Petitions to the FAA for Section 333 Exemption. That Media Coalition includes: Advance Publications, Inc.; A.H. Belo Corp.; The Associated Press; Gannett Co., Inc.; Getty Images (US), Inc.; Gray Television, Inc.; NBCUniversal, Inc.; The New York Times Company; Scripps Media, Inc.; Sinclair Broadcast Group, Inc.; and WP Company LLC (d/b/a The Washington Post), represented by Charles D. Tobin and Christie N. Waltz of the Washington, DC law firm Holland & Knight, LLP. The additional comments by NPPA were submitted to reflect the specific concerns of our members and were drafted by NPPA General Counsel Mickey H. Osterreicher and Advocacy Chair Alicia Wagner Calzada, who is also an  attorney with Haynes and Boone, LLP.

As noted, the NPPA has an acute interest in helping the FAA properly expedite the integration of sUAS into the National Airspace System (“NAS”).  We also support exemptions by the FAA that would permit journalists, and in particular visual journalists, to use sUAS for newsgathering purposes. The NPPA reviewed the voluntary and self-imposed “limitations and conditions” proposed in the production companies’ petitions. And while they may be acceptable to those groups, we urged the FAA to decline to adopt or extend them as prerequisites for future exemptions or as future standards in its rulemaking. The NPPA acknowledged that some of those limitations and conditions might be acceptable, but expressed our concerns about others that we deemed to be impractical and which would impose an undue burden on sUAS use for newsgathering.

The NPPA continues to assert that sUAS use for newsgathering is not a “commercial use” and we expect to see tangible benefits if the current exemption requests are granted. Specifically, we would hope that NPPA will also be allowed to “facilitate” exemption petitions on behalf our membership in a similar manner to what has been achieved by the Motion Picture Association of America.

The NPPA also referenced in its comments and filed a copy of our paper written in support of sUAS for use in newsgathering, which also included results from a study we conducted on that subject.

 

Posted in drone, Drones, FAA, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, rulemaking, small unmanned aerial systems, sUAS | No Comments »

NPPA Helps Create Newly Released Credentialing Report

June 5th, 2014 by Tyler Wilson and tagged , , , , , , , , , , , ,

The Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society and the Journalist’s Resource project at Harvard’s Shorenstein Center on Media, Politics and Public Policy, in collaboration with a Media Credentialing Working Group composed of the National Press Photographers Association, the Digital Media Law Project, Journalist’s Resource, Free Press, the Investigative News Network, and the Nieman Journalism Lab have released a new report: Who Gets a Press Pass? Media Credentialing Practices in the United States.

Media credentials have long played a critical role in newsgathering in the United States, allowing journalists to gain special access to places and events denied to the general public. There are, however, many inconsistencies among regulatory standards for the issuance of credentials, and many circumstances where the decision of whether and how to issue credentials is left up to individual agencies with no regulatory guidance at all. Moreover, upheaval in the journalism industry has introduced new actors in the journalism ecosystem, complicating decisions by government agencies and private gatekeepers about who should be entitled to special access.

Who Gets a Press Pass? presents a first-of-its-kind analysis of this complex environment, exploring media credentialing practices in the United States through a nationwide survey of more than 1,300 newsgatherers.

“Media credentials represent one of the most important interactions between journalists and those who control access to events and information,” said Jeff Hermes, director of the Digital Media Law Project and an author of the report. “This study finds common threads that run through decisions by various types of organizations, as a starting point to make sense out of the vast array of credentialing practices in the United States.”

Survey respondents included a wide range of journalists across the country, from employed journalists at long-standing media organizations to independent bloggers and activists fulfilling the information needs of their communities.

“The findings here speak to the vital issue of ensuring that journalists of all kinds can bear witness to important events in our society,” said Shorenstein Center Director Alex S. Jones. “The ability of the press to operate freely, robustly and without interference is essential to an informed public. We must be vigilant in making sure that all organizations issuing press credentials exert the maximum effort to accommodate media members and enable the free flow of information.”

The survey asked about respondents’ experiences in seeking press credentials from federal, state, local, and private organizations from 2008 through 2013, revealing the following nationwide trends:

  • One out of every five journalists surveyed who applied for a credential was denied at least once by a credentialing organization in the past five years. Although there may be reasonable grounds for denial in some cases, the data suggest systemic issues at many levels.
  • Freelancers are more than twice as likely as employed journalists to be denied a credential at least once.
  • Those identifying themselves as photographers are almost twice as likely as others to be denied a credential at least once.
  • Those identifying themselves as activists are more than twice as likely as others to be denied a credential at least once.

“It is indeed unfortunate that photographers have been one of the groups singled out for denial by agencies issuing press credentials, but it also must be pointed out that one does not need a press credential to photograph and record in a public place. That said, widespread mistrust by police officers of the media (or anyone with a camera) continues to be reflected in the misguided belief that photography and recording in public places may be prohibited,” said NPPA general counsel Mickey H. Osterreicher, who helped formulate the survey.

It is the hope of the Working Group that this study will help newsgatherers to identify particular tensions in media credentialing practices and to work with credentialing agencies to resolve these tensions.

The report is available through the Digital Media Law Project’s website at http://www.dmlp.org/credentials and through the Journalist’s Resource website at http://journalistsresource.org/studies/society/news-media/who-gets-press-pass-credentialing.

Posted in Access, Cameras, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Press Credentials, Public Photography, Regulations limiting photography | No Comments »

NPPA files Amicus Brief Supporting Right to Photograph and Record Police in Public

June 2nd, 2014 by Tyler Wilson and tagged , , , , , , , , , , ,

The NPPA filed an Amicus Brief today in a federal civil rights lawsuit involving an Austin, Texas man, who says that police violated his constitutional right to photograph and/or film police in a public setting.

In his complaint Antonio Francis Buehler alleged that he was arrested on a number of occasions while recording Austin Police officers performing their official duties in public places. As a result of these incidents Buehler formed the Peaceful Streets Project, a group which routinely videotapes police officers in the city.

Buehler filed suit against the Austin Police Department and several police officers for violations of his civil rights. The defendants in the lawsuit then moved to dismiss the suit, and claimed “qualified immunity,” which protects government officials from being the subjects of lawsuits unless they have violated a clearly established constitutional right.

“The NPPA chose to file an amicus brief so early in this case because of the extraordinary and incredulous claim by the Austin Police Department that ‘the Fifth Circuit does not recognize photographing/videotaping police officers as a constitutional right,'” said NPPA Advocacy Chair Alicia Calzada.

The brief counters the police department’s argument that the “First Amendment right to videotape law enforcement is not a cognizable claim,” as being incorrect as a matter of law and also because it frames the issue far too narrowly.  Rather, the constitutional right to film police officers while on duty has been well established for decades through numerous constitutional decisions that protect the “coextensive” rights of journalists and members of the public to gather information and to hold government officials accountable for their actions, as the First Circuit Court of Appeals held in the 2011 case of Glik v. Cunniffe. In Glik, a citizen was arrested after using his cell phone to photograph Boston police officers he believed were using excessive force in effectuating an arrest. After his charges were dismissed, Glik filed a civil action against the Boston Police Department and won because the First Circuit observed that a citizen’s right to film police officers on duty is a “basic, vital, and well-established liberty protected by the First Amendment.”

Several other cases have affirmed that the right to film police officers while on duty is clear and unambiguous, thus further weakening the Austin Police Department’s dubious claim. Most recently, the First Circuit reaffirmed this principle, denying qualified immunity in a case that involved videotaping police during a traffic stop in the case of Gericke v Begin. The court in Gericke explained that some constitutional principles are self-evident and do not need to have a case directly on point.

The United States Department of Justice (“DOJ”) has also affirmed this right in  multiple Statements of Interest, explaining that over eighty years of precedent, going back to the 1931 case of Near v. Minnesota, stand for the proposition that “government action intended to prevent the dissemination of information critical of government officials, including police officers, constitutes an invalid prior restraint on the exercise of First Amendment rights.”

The law is also clear that these constitutional protections apply as much to individuals as they do the institutional press, something the NPPA has consistently noted. “NPPA has always fought to uphold the right to photograph and record in public for everyone,” said NPPA Generasl Counsel Mickey H. Osterreicher. “While the press may not have any greater right of access than the public, they have no less right either and the last thing we want is for the government to be the arbiter of who is entitled to ‘Free Speech’ or ‘Free Press’ First Amendment protection,” he added.

The amicus brief was drafted pro bono by attorneys Robert Corn-Revere, Ronald London, and Alison B. Schary, with the law firm of Davis Wright Tremaine, who have generously supported this and other NPPA efforts to promote and uphold the right to take pictures in public. Corn-Revere, London and Schary were recipients of the 2013 NPPA Kenneth P. McLaughlin Award of Merit for their efforts in support of the First Amendment.

 

 

 

 

Posted in Austin Police, Boston Police, cell phone cameras, Department of Justice, DOJ, First Amendment, First Amendment rights, Glik v Cunniffe, law, Lawsuit, Legal, Newsgathering, photographers, Photographers' Rights, photojournalism, Police, Recording, Recording Police, Simon Glik, Texas | No Comments »

NPPA Joins Brief Supporting Journalists’ Use of Unmanned Aerial Systems

May 7th, 2014 by Wills Citty and tagged , , , , , , , , , , ,

The NPPA and a coalition of media organizations have joined to file a legal brief in a case that may help shape the future of the use of unmanned aerial systems (“UAS”) by journalists nationwide.  The brief, filed by the law firm Holland & Knight on behalf of the NPPA and 13 other media organizations, argues in favor of a UAS pilot fined by the FAA for flying a model plane fitted with a camera around the University of Virginia in 2011.

A judge overturned the fine against Raphael “Trappy” Parker in March, but the FAA appealed that decision. The National Transportation Safety Board will review the holding in the coming weeks.  The approaching NTSB review will focus, in part, on whether the FAA’s current ban on the unlicensed commercial use of small UAS exceeds its administrative authority.

The amicus brief argues that the FAA’s current policy is overly broad, and improperly fails to draw a distinction between commercial uses and “the use of UAS technology for the First Amendment-protected purpose of gathering and disseminating news and information.”  The brief contends that lagging administrative proceedings to update the rules and minimal efforts to grant licenses to private parties have combined with current policies to essentially ban civilian use of UAS.

NPPA General Cousel Mickey Osterreicher said the blanket ban improperly burdens journalists.

“With the advent of smaller and more advanced aerial platforms which are simple to operate and inexpensive to purchase, it is logical that innovative visual journalists [would] seek to report the news by using these devices to capture images with which to better inform the public,” Osterreicher said.  Osterreicher pointed to aerial photographs of the aftermath of the recent building explosion in Harlem as an important example of this type of publicly beneficial use.

The Supreme Court has repeatedly reaffirmed the idea that the First Amendment extends some protection to newsgathering activities.  By incorrectly deeming media organization’s use of UAS as a commercial activity, rather than a newsgathering application, current policies undermine significant constitutional concerns.  “Contrary to the FAA’s complete shutdown of an entirely new means to gather the news, the remainder of the federal government . . . has recognized that, in the eyes of the law, journalism is not like other business,” the brief asserts.

The particular utility of UAS for newsgathering purposes reinforces the First Amendment interests at stake.  A recent NPPA survey canvased approximately 50 news organizations and media associations to determine how small UAS could help journalists do their jobs.  The survey revealed UAS could aid in the reporting of newsworthy events such as natural disasters, accidents, and adverse weather conditions, where safety concerns or other restrictions might otherwise limit coverage.

Even strong proponents of UAS concede that increased use might present some dangers, especially in highly populated areas.  However, the brief argued, “the News Media Amici and the government can address legitimate safety concerns while protecting First Amendment rights and providing the public with enhanced access to important information.”  The government’s delay in promulgating a formal rulemaking process to consider the balancing of these interests is a central basis for the challenge to current policy.

The brief also argued that privacy concerns arising from media organizations’ use of UAS could be addressed by existing laws, and that forward looking policy determinations regarding privacy should be “based on a discussion among policy makers, privacy advocates, and industry.”

The other problem with the FAA’s current policy is that it was arguably adopted without proper administrative procedures.  When an agency seeks to establish enforceable rules or regulations, as it did here, it must meet certain legal requirements.   The lack of proper procedure is compounded by an absence of clarity in the policy itself, leading to outcomes that depart from legal norms, such as the regulation of model airplanes under general federal aviation regulations.

The current state of the law on UAS use for newsgathering purposes demands swift action from the FAA, Osterreicher concluded:

“It is incumbent that the FAA chart a pragmatic and expedited course in its administrative rulemaking. There is neither room nor time for complacency or hubris in addressing this matter, lest, flying too low or too high it end up failing like Icarus in an attempt to rule the sky.”

Osterreicher will present the NPPA study and paper on UAS at a meeting of the Association for Unmanned Vehicle Systems International in Orlando next week.  The FAA’s “roadmap” for integrating civilian UAS usage is available here.

Posted in Access, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | 2 Comments »

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