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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 »

NPPA, Joined by Other Groups Sends Letter Requesting Return of Seized Equipment

February 28th, 2017 by Mickey Osterreicher and tagged , , , , , , , , , , , , , , , ,

***** UPDATE 3/1/17 *******

The seized cameras, phones and equipment belonging to visual journalists, Tonita Cervantes and Tracie Williams, was returned to them today.

Today, the NPPA joined by the Committee to Protect Journalists, the Native American Journalists Association, the Online News Association and the Society of Professional Journalists sent a letter to Morton County State’s Attorney, Allen Koppy, seeking the return of all equipment and personal items seized from visual journalists, Tonita Cervantes and Tracie Williams subsequent to their arrest last week while covering events at the Dakota Access Pipeline camp. Their attorney, Matthew E. Kelley, of Levine Sullivan Koch & Schulz, LLP made a similar request yesterday.

This follows on the heels of a previous letter sent by the same group urging officials to allow journalists to do their work at Standing Rock.

Today’s letter also requests that “the charges be dropped against these two journalists in the interst of justice.”

Posted in Access, Assault on Photographers, First Amendment, First Amendment rights, National Press Photographers Association, NPPA, Photographers' Rights, Visual Journalists | No Comments »

Judge Halts Enforcement of Unconstitutional Nude Photo Law in Arizona

July 10th, 2015 by Mickey Osterreicher and tagged , , , , , , , , , , ,

PHOENIX – A federal court today permanently ordered Arizona state prosecutors to halt enforcement of a 2014 law restricting the display of nude images.

The order approved a joint final settlement between the Arizona attorney general and the coalition of plaintiffs which include the National Press Photographers Association (NPPA), Arizona booksellers, book and newspaper publishers, and librarians, who filed a federal lawsuit challenging the law.

The order resolves all claims in the lawsuit, Antigone Books v. Brnovich, and states that plaintiffs are entitled to attorney’s fees.

“We are very pleased with the outcome of this case and our representation by our attorneys in this matter,” said Charles W. L. (“Chip”) Deale, NPPA Executive Director.

“This is a complete victory for publishers, booksellers, librarians, photographers, and others against an unconstitutional law,” said Media Coalition Executive Director David Horowitz, whose members include plaintiffs in the suit. “Now they won’t have to worry about being charged with a felony for offering newsworthy and artistic images.”

The law, Arizona Revised Statute 13-1425, was initially passed with the stated intent of combating “revenge porn,” a term popularly understood to describe a person’s malicious posting of an identifiable, private image online with the intent and effect of harming an ex-lover. But, as plaintiffs maintained in the lawsuit, the law wasn’t limited to revenge and criminalized far more than offensive acts. It could have led to the conviction of someone posting a nude photo with no intent to harm the person depicted. This would include, for example, an artistic photographer who creates an anthology of his images of nudes — as well as the book’s publisher, seller, or librarian.

As part of the lawsuit, NPPA General Counsel Mickey H. Osterreicher expressed fears in his declaration “that the NPPA’s members (including me) are at risk of prosecution under the Act simply for doing our job—the accurate and comprehensive reporting of the news. The Act would subject the NPPA’s members to prosecution for taking newsworthy, non-obscene photographs and videos, and either offering those photographs and videos for publication, or themselves publishing the photographs and videos through electronic or other media.” “With this very comprehensive settlement, that concern has now been alleviated,” said NPPA President Mark Dolan.

Likewise, a person who shared a photograph could have been charged with a felony even if the person depicted had no expectation that the image would be kept private and suffered no harm, such as a photojournalist who posted images of victims of war or natural disaster. As a result, the law applied to any person displaying an image of nudity, no matter how newsworthy, artistic, educational, or historic.

“This is an important vindication of the First Amendment and a great resolution for our clients,” said ACLU Staff Attorney Lee Rowland, who, along with lawyers from the ACLU of Arizona and Dentons US LLP, represents the plaintiffs. “We commend the state for agreeing not to enforce a broad statute that chilled and criminalized speech unquestionably protected by the Constitution.”

Dan Pochoda, attorney for the ACLU of Arizona, added: “We always believed that it would be a waste of the Arizona taxpayers’ money to continue defending this unconstitutional statute. We’re pleased that the court’s order means this law will not be enforced, all without additional and unnecessary litigation.” Today’s order is at: http://mediacoalition.org/antigone-books-v-brnovich/

The plaintiffs were: Antigone Books L.L.C.; Intergalactic, Inc., D/B/A, Bookmans; Changing Hands Bookstore, Inc.; Copper News Book Store; Mostly Books; Voicemedia Group, Inc.; American Booksellers Foundation For Free Expression; Association Of American Publishers; Freedom To Read Foundation; and the National Press Photographers Association (NPPA).

Posted in Access, ACLU, First Amendment, First Amendment rights, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

NPPA Joined by 17 Groups Protest Forest Service Photo Permits

October 1st, 2014 by Alicia Calzada and tagged , , , , , , , , ,

The National Press Photographers Association, joined by seventeen news organizations, photographers’ organizations and First Amendment advocacy groups sent a letter to U.S. Forest Service Chief, Thomas L. Tidwell, opposing the Forest Service’s proposal to make permanent its interim directive on filming in the nation’s wilderness areas. The letter expressed the groups concern that the proposal would apply new criteria in deciding whether to issue a permit for filming in Congressionally-designated wilderness areas as well as the permanent directive’s vague language and failure to make a clear distinction between still photography, film and videography for newsgathering purposes and “commercial” film and still photography.

Tidwell has been quoted recently in the media as saying the “US Forest Service remains committed to the First Amendment,” but Osterreicher, on behalf of the organizations, explained in the letter that the language of the “provisions in the draft directive” does not make it clear that it does “not apply to news gathering or activities” and urged the Forest Service “to  work closely with us to craft an unambiguously worded policy that protects not only our natural resources but our First Amendment guarantees.”

The letter also expressed the groups concern “not just for 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 an assured media outlet for their work.”

Of even greater concern to the group is “that a permit could be arbitrarily denied because a member of the Service with such authority might believe that a news story did not comport with the vague notion of protecting ‘wilderness values.’” The group contends that “the proposed permanent policy limits far more speech than is necessary to achieve the government’s stated purpose. Not only does requiring a permit for ordinary newsgathering create a chilling effect on freedom of speech and of the press, but also granting/the Service the ability to deny such a permit in the case of a journalist or news organization would, we believe, create an unconstitutional licensing obligation or  – worse – a prior restraint on those newsgathering activities.”

Those joining in the letter were: American Photographic Artists, American Society of Media Photographers, American Society of News Editors, Associated Press, Associated Press Media Editors, Associated Press Photo Managers, Association of Alternative Newsmedia, Digital Media Licensing Association, National Federation of Press Women, National Newspaper Association, National Press Club, Newspaper Association of America, North American Nature Photography Association, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Society of Environmental Journalists and Society of Professional Journalists.

 

 

Posted in Access, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, Permits, photographers, Photographers' Rights, photojournalism, US Forest Service | No Comments »

NPPA Member Wins Major Victory Against Suffolk County Police Department

June 17th, 2014 by and tagged , , , , , , , , , , , , , , , , , , , , , ,

NPPA member Philip Datz today won a major settlement from the Suffolk County Police Department in a civil rights suit stemming from Datz’s arrest while filming law enforcement activity on a public street.   Under the terms of the settlement, Suffolk County agreed to pay Datz $200,000, implement a new training program (including a training video), and create a Police-Media Relations Committee.

The NPPA, attorneys from the law firm of Davis Wright Tremaine (DWT) and the NYCLU worked with Datz, a freelance videographer, to file a federal lawsuit after Suffolk County prosecutors dropped charges resulting from his 2011 arrest.  In July of 2011 Datz was filming police activity from a public sidewalk when Suffolk County Police Sergeant Michael Milton confronted him (VIDEO), demanding he leave the area immediately.  Datz was wearing his press credentials at the time and was standing near several other onlookers, who were not asked to leave.  Although no police lines had been established, Datz complied and then drove a block away. He was filming from there when Sergeant Milton came speeding up in his police cruiser, placed Datz under arrest for obstruction of governmental administration, and seized his camera and videotape.

Led by attorney Robert Balin, DWT filed suit on Datz’s behalf in 2012, claiming the unlawful arrest violated his First and Fourth Amendment rights as well as the Privacy Protection Act of 1980.  Rather than take the case to trial, SCPD agreed to the settlement payment, and a series of relief measures aimed at educating its officers on the rights of the public and press to observe and record police activity.  As part of these measures,  SCPD officers will now be annually required to watch a training video explaining these rights.  In addition, a newly created Police-Media Relations Committee consisting of representatives of SCPD and local media will be charged with promoting better relations between press and the police and will address complaints regarding police-media relations. Its membership will include a commanding officer in the SCPD, the executive officer of the SCPD’s Public Information Bureau, and members of local print and broadcast media outlets, as well as a freelance videographer or photographer. The SCPD also revised its rules to instruct officers that “members of the media cannot be restricted from entering and/or producing recorded media from areas that are open to the public, regardless of subject matter.”

“This settlement is a victory for the First Amendment and for the public good,” Datz said. “When police arrest journalists just for doing their job, it creates a chilling effect that jeopardizes everyone’s ability to stay informed about important news in their community. Journalists have a duty to cover what the police are doing, and the police should follow the law and respect the First Amendment to ensure they can do that.” Datz has also made a generous donation to the NPPA defense fund.

“We are delighted that Suffolk County has now joined other police departments, the U.S. Department of Justice and numerous courts across the country in recognizing that the public and press have a First Amendment right to photograph and record police officers performing their duties in a public place – a right that is essential to newsgathering and the free discussion of government affairs,” said Robert Balin. “This settlement is a huge victory not just for Phil Datz, but for all journalists and Suffolk County residents. The changes in policy and training agreed to by the County are major steps toward transforming the SCPD culture that led to this unfortunate incident. “The settlement is an encouraging sign in a climate where interference with and unlawful arrest of photographers has become commonplace.

“The National Press Photographers Association commends Suffolk County for working with Phil Datz and his counsel in order to turn a far too commonplace First Amendment violation into a constructive resolution of the case,” said Mickey H. Osterreicher, general counsel for the NPPA. “The real challenge now will be to ensure the ongoing training of SCPD officers in order for Suffolk County to be a positive role model for other law enforcement agencies. The NPPA is also extremely appreciative of the tenacious advocacy by Rob Balin, Alison Schary and Sam Bayard of the law firm of Davis Wright Tremaine who worked tirelessly on Phil’s behalf. And finally our thanks go to Phil Datz for not only having to endure the abridgment of his civil rights but for his willingness to stand up for his rights and the rights of others.”

The Suffolk County case is just the latest example of a lawsuit forcing local law enforcement to protect, rather than violate, the First Amendment. In March the Baltimore Police Department settled a case brought by the ACLU for a similar amount and also announced a new policy that prohibits officers from stopping people from taping or photographing police actions after officers destroyed a man’s personal, family videos because he taped a police incident, a case in which the U.S. Department of Justice filed a Statement of Interest affirming the right of both the public and the press to record police activities in public.

Also see: http://www.freedomtofilm.com/settlement.html  for additional info and links to documents including letter of discipline and Internal Affairs report.

 

Posted in Access, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

NPPA Joins 32 Other Organizations in Calling on FAA to Expedite Rulemaking for Unmanned Aircraft Systems

April 8th, 2014 by Mickey Osterreicher and tagged , , , , , , , , , , , ,

Today, the National Press Photographers Association (NPPA) joins the Association for Unmanned Vehicle Systems International (AUVSI), Academy of Model Aeronautics (AMA) and 30 other organizations in sending a letter to the Federal Aviation Administration (FAA) encouraging the agency to expedite the rulemaking process for unmanned aircraft systems (UAS) operations in the U.S. airspace. The letter also calls on the FAA to allow the limited use of small UAS for commercial purposes before the final rulemaking is completed.

While Congress authorized the integration of UAS in 2012 and the FAA has recently implemented key steps in the integration process, the rulemaking for small UAS has been delayed for almost four years. Last month’s FAA v. Pirker decision underscores the immediate need for a safety structure and regulatory framework for small UAS, according to the co-signees.

“The time for resolution has come, and we cannot afford any further delays. The technology is advancing faster than the regulations to govern it,” the letter states. “While the FAA has indicated its intention to appeal the Pirker decision to the full National Transportation Safety Board, we strongly encourage the FAA to simultaneously expedite its small UAS rulemaking and issue notice and public comment as soon as possible.”

In addition to NPPA, the co-signees include a broad array of organizations and industries, from agriculture to real estate to photography, that recognize the benefits of UAS in particular for newsgathering purposes.

In addition to expediting the UAS rulemaking, the organizations urged the FAA to use its congressional authority to allow some limited UAS operations right away.

“We recommend the FAA use all available means, including Section 333 of the FAA Modernization and Reform Act of 2012, to allow for some limited UAS operations, subject to the Secretary of Transportation’s safety determination, before the small UAS rule is finalized,” the letter states.

“The current regulatory void has left American entrepreneurs and others either sitting on the sidelines or operating in the absence of appropriate safety guidelines. The recreational community has proven that community-based safety programming is effective in managing this level of activity, and we highly encourage the FAA to allow similar programming to be used to allow the small UAS industry to establish appropriate standards for safe operation. Doing so will allow a portion of the promising commercial sector to begin operating safely and responsibly in the national airspace.”

According to AUVSI’s economic impact study, the integration of UAS will create more than 100,000 new jobs and $82 billion in economic impact in the first decade following integration. NPPA’s Executive Director Charles (Chip) Deale commended the groups’ effort to advocate for a regulatory framework.

“It is unfortunate that the FAA has taken so long to address this issue in a commonsense and expedited manner and we urge Administrator Huerta to include our organization and other stakeholders in its rulemaking process,” Deale said.

The letter co-signees include: Aerospace States Association, Air Traffic Controllers Association, Airborne Law Enforcement Association, Aircraft Owners and Pilots Association’ Airports Council International – North America, American Association of Airport Executives, American Institute of Aeronautics and Astronautics, American Society of Agronomy, American Soybean Association, Crop Science Society of America, Experimental Aircraft Association, General Aviation Manufactures Association, Helicopter Association International, International Society of Precision Agriculture, International Stability Operations Association, National Air Traffic Controllers Association, National Air Transportation Association, National Association of Realtors, National Association of State Aviation Officials, National Association of Wheat Growers, National Barley Growers Association, National Business Aviation Association, National Sheriffs’ Association, National Ski Areas Association, National Sunflower Association, North American Equipment Dealers Association, Radio Television Digital News Association, Realtors Land Institute, Soil Science Society of America and U.S. Canola Association

The full letter may be found at www.auvsi.org/AUVSI-AMA-Sign-On-Letter-To-FAA

Posted in Access, drone, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, UAS, Visual Journalists | No Comments »

Smithsonian Security Guards Confront Photographer Filming Protest

December 10th, 2013 by and tagged , , , , , , , ,

A veteran photographer is looking for answers after he was accosted by Smithsonian security guards while recording fast food workers protesting at the museum last week.

Kristoffer Tripplaar was at the Smithsonian’s Air and Space Museum to document workers who walked off the job and picketed Thursday as part of a national campaign demanding higher wages. Tripplaar was recording a confrontation between security officers and a fellow photographer, when he says he was pulled into the fracas.

Tripplaar says it started when a security guard pushed the other journalist towards him.  Worried that his equipment would be damaged, Tripplaar leaned forward to take the incoming blow with his body, and in the process collided with the officer.  A second officer quickly approached, claiming Tripplaar had struck his colleague, and a third tackled the photographer to the ground.

Tripplaar says the violent exchange was completely unwarranted, telling Photographer Is Not a Crime “I can’t emphasize enough that I did not lay a finger on the officer.”

Video of the incident shows three officers smothering the photographer, who appears to be trying to protect himself and his equipment.

Tripplaar’s description of the acting supervisor’s reaction to the incident seems to confirm that the security guards overreacted:

“As I was on the ground a security officer that identified himself as a supervisor came over, told them to let me go and offered to help me up. I told him I would not get up until he made the three security officers back off because I was afraid they would grab me again. Once they backed off, I got up and went back to photographing the protest.”

But the ordeal wasn’t over yet:

“Once the protest inside the food court wound down, I approached the supervisor who had helped me to ask for the names of the officers who had grabbed me, one of which was standing next to him. When I did that they both began pushing me towards a door saying it was time for me to leave.”

Tripplaar has contacted the Smithsonian’s press office to file a complaint, and says he’s shocked by the guard’s behavior.

“I’ve been doing this for almost ten years. I cover everything from the White House to the Capitol. I’ve done countless protests, some of them got pretty heated and a little pushy. And I’ve never, ever, ever had something like this happen to me. Ever.”

Posted in Access, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

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