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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 »

NYPD Officer Indicted After Investigation of NPPA Member’s Unlawful Arrest

August 28th, 2013 by and tagged , , , , ,

An NYPD officer accused of roughing up and illegally arresting a New York Times photographer has been indicted on multiple charges stemming from an incident last August. Robert Stolarik, an NPPA member, was violently accosted and taken into custody while photographing Officer Michael Ackermann who was trying to arrest a teenage girl in the Bronx.

Officer Ackermann claimed Stolarik hindered police work by repeatedly aiming the flash of his camera at the officer’s face. That story crumbled under investigation by the NYPD Internal Affairs Bureau (IAB). The Bronx district attorney also learned that Stolarik did not have a flash on his camera at the time of the incident, and concluded the officer’s story was a lie. Ackermann now faces three felonies and five misdemeanors, and could see up to seven years in prison if convicted of the most serious charge.

Working with New York Times’ Vice President and Assistant General Counsel George Freeman after the arrest, NPPA General Counsel Mickey Osterreicher sent a letter to NYPD Deputy Commissioner Paul Browne objecting to Stolarik’s unwarranted arrest and rough treatment. Freeman and Osterreicher also requested that the photographer’s equipment and press credentials, both seized at the time of the incident, be immediately returned. In addition the NPPA publicly criticized the NYPD for their actions.

Stolarik’s ordeal was especially troubling because he was arrested in direct violation of NYPD’s own Patrol Guide directives as noted in a follow-up letter from Osterreicher to Browne. Osterreicher also sent a letter to the editor, which was published in the NY Times. In it Osterreicher urged “the New York Police Department to work with us to improve training and supervision for its members.”

Robert Stolarik displays his NYPD press credentials in Tampa. FL, received 2 days before the RNC (photo by Mickey Osterreicher)

The NYPD returned Stolarik’s equipment in the days following the NPPA’s first letter. Osterreicher’s continued negotiations with the department resulted in the release of the photographer’s press credentials two weeks later. Ongoing efforts by George Freeman resulted in prosecutor’s ultimately dropped all charges against Stolarik.

The internal investigation that resulted in Officer Ackermann’s indictment is an encouraging sign in what was otherwise a troubling year for the NYPD’s relationship with photographers. Soon after Stolarik’s arrest, police conducted a campaign of intimidation and interference against photographers covering the anniversary of the Occupy Wall Street protest. Stolarik himself had been forcibly prevented from covering the actual rally the previous year. Several journalists were detained or arrested at the Occupy anniversary. The NPPA also responded to these incidents.

Incidents such as this are becoming all too common throughout the country. Many officers apparently do not know or disregard photographers’ First Amendment rights. Despite assertions two years ago that the NYPD was providing improved training to its officers the situation in New York City has not improved. “We have been unsuccessful in arranging a meeting with the new NYPD Deputy Commissioner for Legal Matters (DCLM) or the Deputy Commissioner for Public Information (DCPI) to discuss these issues,” said Osterreicher. “Commissioner Kelly and his staff met with members of the media after the arrests of 26 journalists in Zuccotti Park in November of 2011, after which he issued a Finest message directing members of the NYPD to cooperate with the press. At the time I said that it was a good start but since then it appears to be just another piece of paper as far too many officers and supervisory staff ignore its directives,” Osterreicher added.

On behalf of the NPPA, Osterreicher has continued to advise and train police agencies around the country in an effort to improve police-press relations. The First Amendment is not absolute but subject to reasonable time, place and manner restrictions. While police may have the discretion to limit access when public safety or other legitimate law enforcement activities so dictate, they may not order someone to stop taking photographs or recording video in a public place, especially if other members of the public are allowed to remain and observe those activities.

As Osterreicher says in his police training: “We can do this the easy way or the hard way!” It is indeed unfortunate that rather than respecting the Constitution and the Bill of Rights that they are sworn to uphold some officers believe that they are a law unto themselves. For Officer Ackermann it may have been a very costly mistake to view a photographer with a camera with suspicion and contempt. Everyone has a job to do: for a police officer it is to provide public safety and enforce the law; for a visual journalist it is to gather and disseminate news. It would best serve both purposes if this case helps to encourage cooperation between the two professions rather that continued conflict. As often is the case it’s the enlightening truths that prove most elusive.

Posted in Access, DCPI Paul Browne, False Arrest, First Amendment, First Amendment rights, Legal, National Press Photographers Association, New York TImes, News Photography, Newsgathering, NPPA, NYPD, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Press Credentials, Public Photography, Recording Police, Robert Stolarik | No Comments »

NPPA Joins Lawsuit Against NYPD

October 22nd, 2012 by and tagged , , , , , , , , , , , , , ,

Today the National Press Photographer’s Association (NPPA) announced that it was joining 5 elected officials and almost a dozen members of the press in a lawsuit against the New York Police Department (NYPD) and JP Morgan Chase. The lawsuit alleges that the City of New York, the MTA, the NYPD, Brookfield Properties, and JP Morgan Chase conspired to violate the First Amendment rights of press members who were arrested while covering the “Occupy Wall Street” protests. The amended complaint seeks both redress against police misconduct during these arrests and that a federal independent monitor be appointed to observe future NYPD incidents involving the press.

NPPA joins this lawsuit on behalf of its 7000 members, including Plaintiff Stephanie Keith. Recently awarded the Newswoman of the Year Award by the Newswoman’s Club of New York, Ms. Keith was arrested twice while covering the Occupy Wall Street protests. “I joined this lawsuit because as a working journalist I’ve been arrested, thrown to the ground, hit with batons and yelled at by the NYPD while doing my job on assignment” said Ms. Keith. “I have seen my fellow journalists being treated this way as well. Why should journalists be subjected to trauma inducing harassment on the job?”

Sean D. Elliot, President of NPPA, stated that NPPA joined the lawsuit so that “it can effectively address the continuing course of conduct by the NYPD against its members and others that has chilled our Constitutionally protected rights to gather and disseminate news.”

Other plaintiffs in this lawsuit were quick to praise NPPA for joining as a new party. “We are pleased and honored to have the NPPA join our efforts, and we look forward to working with them towards the goals of justice, accountability and freedom of expression,” said Sam Cohen, one of the attorneys at the helm of the case. Yetta Kurland, a civil rights attorney assisting with the case, remarked that “The NPPA and other members of the press play a vital role in getting the message of OWS out to the world. Arresting the press isn’t just an attempt by the City and JP Morgan Chase to suppress the press and freedom of speech and expression, but also to suppress the message of Occupy.”

Posted in Assault on Photographers, Attack Photographers, Commissioner Raymond Kelly, First Amendment, First Amendment rights, Lawsuit, National Press Photographers Association, News Photography, Newsgathering, NPPA, NYPD, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Police, Recording Police | No Comments »

NPPA & REPORTERS COMMITTEE SEEK DISMISSAL OF CHARGES AGAINST PHOTOJOURNALIST COVERING OCCUPY PROTEST

March 12th, 2012 by Mickey Osterreicher and tagged , , , , , , , , , , , , , , , , , , , , , ,

FOR IMMEDIATE RELEASE

DURHAM, NC — The National Press Photographers Association (NPPA) and The Reporters Committee for Freedom of the Press (Reporters Committee) filed a joint “Letter Brief” seeking the dismissal of charges against Bradley Stuart Allen in The People of the State of California v. Becky Ann Johnson et al, Case No. F22194. The brief asserts that Mr. Allen, who is a photojournalist and NPPA member, should not be criminally prosecuted for trespass, vandalism and conspiracy. He was charged after his photographic coverage of an Occupy Wall Street (OWS) protest in Santa Cruz, California last year.

Noting that the First Amendment’s guarantee of press freedom is meaningless if journalists do not possess a concomitant right to gather the news, the brief states that –  while the allegedly violated statutes may serve important government interests, they cannot be exempt from First Amendment protection. Application of these laws in the prosecution of a journalist engaged in the constitutionally protected act of newsgathering demands careful balancing of these competing interests.

“While journalists may sometimes violate the letter of the law in order to obtain information of public concern, we believe it is extremely important for the court to also consider when such action occurs in the spirit and exercise of First Amendment rights,” said Sean D. Elliot, NPPA president. “Review of visual reportage subject to criminal penalties without that balance unfairly burdens newsgathering at its most critical need of protection,” he added.

This is just the most recent case where journalists have been interfered with and arrested while covering OWS protests throughout the country. In almost every case, those charges — ranging from disorderly conduct and obstruction of governmental administration to trespass — have been dismissed or the defendant journalists have been acquitted.”

About the National Press Photographers Association (NPPA)

The NPPA is a nonprofit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. Since 1946, NPPA has vigorously promoted freedom of the press in all its forms, especially as that freedom relates to visual journalism.

For more information, contact Mickey H. Osterreicher at 716.566.1484 or go to www.nppa.org. You can also follow us on Twitter @nppa.

Posted in Access, Bradley Allen, Conspiracy, First Amendment, First Amendment rights, Interest of Justice, law, Legal, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Police, Reporters Committee for Freedom of the Press, Santa Cruz, Vandalism | No Comments »

NPPA Attorney Obtains Another Dismissal in Cases Against Photojournalists Covering Occupy Protests

February 21st, 2012 by Alicia Calzada and tagged , , , , , , ,

Charges were dismissed last week against a New York City photojournalist arrested while covering the Occupy Wall Street protests.

NPPA’s general counsel, Mickey H. Osterreicher, was successful in obtaining court dismissal of charges stemming from the arrest last November of NPPA member Douglas Higginbotham while he was covering the Occupy Wall Street protests.

Charges were dropped “in the interest of justice,” in response to Osterreicher’s motion to dismiss, made on his behalf. Higginbotham was arrested after he stood on top of a phone booth to get a better vantage point of the protest. As he was attempting to get down (after being ordered to do so by police) officers pulled him off his perch and arrested him for disorderly conduct.

NPPA president Sean Elliot said, “I am pleased to see the correct outcome in this case but unfortunately the fact that Mr. Higginbotham was arrested in the first place represents just another example of a disturbing trend in police-press relations.” “I would hope that the NPPA, SPJ and other organizations representing journalists can continue to make headway in educating police officials on how to better work with the media and avoid such incidents as this in the future,” he added.

Ironically, last year while covering a celebration of the death of Osama bin Laden, Higginbotham was helped up onto another nearby phone booth by police and firefighters. “Being a freelancer working in New York for a TV station in New Zealand, I was very concerned and upset after my arrest,” Higginbotham said in an interview. “Knowing that I had NPPA representing me was very reassuring. I am just glad that this episode is over and that the charges were dismissed,” he added.

The Society for Professional Journalists (SPJ) provided financial assistance for his defense. “I’m not surprised by the outcome,” said SPJ President John Ensslin. “I felt Doug had a strong case and I know he had a good lawyer.” “We at SPJ are relieved and happy that this case is over and that Doug can go back to doing what he does without the threat of prosecution hanging over his head.”

Watch video of TV New Zealand story and his arrest

Charges were also dropped in January, against Jennifer Weiss, a freelance video and print journalist who had been working for Agence France-Presse covering the clearing of Zuccotti Park on November 15 of last year. She was attempting to get to the scene, when a police officer singled her out for arrest. She identified herself as a journalist, but was not allowed to call her editor until after she was released and was one of several journalists arrested that day. She had been charged with blocking pedestrian traffic and disorderly conduct and was issued an appearance ticket, which Osterreicher succeeded in having dismissed.  Ms. Weiss said, “Mickey was extremely helpful, accessible and answered all my questions — and ultimately got my charges dismissed ahead of my court date. I’m very grateful to him for the time and effort he put in on my case.”

Also in January, Osterreicher represented Jonathan Foster, an NPPA student member who was charged with trespassing after being arrested covering Occupy Rochester. Prosecutors initially refused to drop the charges, but they were dismissed at a hearing on January 12.

NPPA’s attorney also provided support to counsel for Kristyna Wentz-Graff and the Milwaukee Sentinel, and he exchanged letters with the police department and prosecutors in that case. In the original police report, Wentz-Graff was charged with standing on a roadway and obstructing the issuance of a citation. The video of the incident shows that she was about to step onto the sidewalk from the street when the police yanked her back into the street and arrested her. Police claimed that they didn’t know she was a journalist but the video showed her credential hanging around her neck and clearly visible. Prosecutors decided not to issue a citation, which is the equivalent of dismissing the original charges in Wisconsin, on December 19.

Posted in Disorderly Conduct, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, Interest of Justice, National Press Photographers Association, News Photography, Newsgathering, NPPA, NYPD, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Police, Recording Police, video cameras | No 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 | No Comments »