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

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

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

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

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

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

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

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

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

The American News and Information Services (ANIS) filed a Complaint Wednesday in federal district court seeking redress for the repeated violation of the First Amendment rights of an ANIS employee by San Diego City and County government officials.

The complaint alleges that San Diego law enforcement exhibited a pattern of First Amendment rights violations by giving law enforcement officers excessive discretion to prevent access to and recording of public safety activity.  It also alleges that the pattern is further evidenced by the San Diego Police Department’s (SDPD) exclusive authority to issue media credentials and the retaliatory actions taken against those who attempt to exercise their right to record.

“The SD Defendants, despite a revolution in access to news brought on by rapid technological advances, still seek through the use of government-issued press credentials control of the message through control of the messenger,” the complaint states.

James C. Playford, a National Press Photographers Association (NPPA) member who began work for ANIS after the SDPD refused to renew his press credentials, has been arrested four times since 2010 while attempting to cover public safety activities.  Three of those arrests resulted in the seizure of Playford’s equipment and raw video.  A photo and physical description of Playford was also allegedly disseminated to San Diego law enforcement identifying him as an individual prohibited from access to public safety activity.

San Diego law enforcement agencies have come under fire recently due to repeated arrests of photojournalists.  The NPPA sent a letter  to the SDPD and along with one from the American Civil Liberties Union of San Diego and Imperial County (ACLU) which they referenced on their website, requesting an end to police interference with photojournalists’ rights to record events occurring in public.  Wednesday’s letter was NPPA’s third letter to San Diego law enforcement this year concerning the rights of photojournalists.

“While the press may not have any greater access rights than the public to these incidents, they have no less rights either,” said Mickey H. Osterreicher, general counsel for NPPA, in his letter to the SDPD.  “Unfortunately a number of your officers have abused their discretion in limiting those press rights and then have detained and arrested our members when questioned about such discriminatory acts.”

In the most recent media controversy, NPPA member and freelance photojournalist Edward Baier was arrested on July 20th by the SDPD and charged with interfering with a police officer, though Baier claimed he was attempting to film from private property with the owner’s permission.  Baier said he was tackled by two officers during the altercation, causing him injuries requiring medical attention.

Baier’s arrest was his second this year by the SDPD.  In January, police told Baier to move away from the scene of a drowning, though the public was allowed to remain inside of the police tape.  When Baier protested, he was arrested and charged with resisting arrest.  The arresting officers later added two counts of assaulting an officer.

The NPPA sent a letter to the SDPD in January objecting to Baier’s arrest, and later sent a letter to the Office of the City Attorney requesting that Baier’s charges be dropped.

“The reliance by your officer to question, detain, interfere with, arrest and seize the property of someone engaged in a lawful activity under color of law is reprehensible,” Osterreicher said in his January letter to the SDPD.  “At best, behavior that chills free speech and unreasonably seizes property is extremely unprofessional, at worst it is criminal.”

As assaults on photographers by citizens and the police have steadily increased in the past couple of years, it is important that you as a photographer know what your rights are if you are involved in one of these incidents.

A recent example of these altercations comes out of New York, where actor Alec Baldwin shoved photographer Marcus Santos outside of the Marriage Bureau.  Santos later filed a complaint with the New York Police Department.  Alec Baldwin claims that he didn’t punch Santos, and in an interview with David Letterman Baldwin claims that he was in fact only hitting the camera, not the photographer.

The truth of the matter is that Baldwin’s actions could have constituted battery without his ever laying a finger on Santos.  The rule in a majority of states in the country is that a person’s body need not be physically harmed to bring a claim of battery.  If unwanted and intentional contact occurs with something that is closely connected to the body such that it could be considered part of the plaintiff’s person, that contact can be treated as battery.

This can include a camera in one’s hand or around one’s neck.  In fact in one case in Rhode Island, a woman was awarded damages for assault and battery after her mechanic, who she took a picture of when she didn’t like the job he did, admitted to placing his hand on the camera that she was holding in an attempt to stop her from taking his picture.  Any unwanted touching of your camera can give rise to a lawsuit just as if your body was assaulted.  The law accords you a right to personal space and that personal space can be disturbed through physical harm, or simply through touching deemed offensive or violative of personal dignity.

If your camera is physically interfered with while in your possession, know that you may not only have the right to bring a civil suit for damages, but that the aggressor may also be criminally liable.

As photographers we often consider our cameras as extensions of ourselves.  We should take comfort knowing the law is in agreement.

The Attorney General in Arkansas issued an opinion letter ruling on Monday confirming that a city council in the state did not have the right to ban video recordings of public meetings.

The Associated Press is reporting that the White River Current newspaper sought an official opinion from the AG’s office after the local city council in Calico Rock banned recordings from its meetings. The newspaper had posted council meeting videos on YouTube.

Three questions were posed to the AG, including

1) whether or not the Arkansas Freedom of Information Act granted citizens a right to make a video recording of a public meeting of elected officials?

A: Yes.

2) whether a claim that recording is “disruptive” because a council member is uncomfortable being recorded, sufficient reason to ban recording.

A: No.

3) whether or not the First Amendment to the U.S. Constitution grants citizens the right to record public officials in performance of their duties.

A: No- the First Amendment does not grant peopel the right to make a tape recording of a public meeting.

In an eleven page opinion, the AG said, in summary:

When one reads the FOIA broadly to foster greater openness and more disclosure—as we are required to do—I believe there are good grounds to conclude that our FOIA affords persons the right to videotape a public meeting. According to my research, this also accords with the law in the overwhelming majority of states. But, in response to your second question, the right to videotape a public meeting is subject to the public body’s reasonable regulation. While such regulation cannot ban videotaping, the regulation can ensure that the activity is done in a manner that does not disrupt the meeting. In my view, the mere fact that a member of the public body is uncomfortable being filmed is not a sufficient reason to ban the videotaping. When it comes to videotaping public meetings, the FOIA appears to give greater rights than does the First Amendment to the U.S. Constitution because—in response to your third question—the amendment does not give people a right to videotape public proceedings.

The opinion is loaded with interesting case law and citations to various state FOI decisions. See in particular footnotes on page 3, for an analysis of various states and the right to record public meetings, with citations to rules expressly permitting recording in Indiana, South Carolina and Kentucky. The opinion can be found at this link.

The Boston Globe is reporting that the City of Boston has paid $170,000 to settle a civil rights lawsuit filed against them after they arrested a man for photographing police activity on the Boston Commons.

The underlying case was the subject of an earlier appellate ruling which held that “peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.” Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011).

The case began over four years ago, when Simon Glik was walking past the Boston Commons and noticed three police officers arresting a man. An attorney who believed that the officers might be using excessive force, Glik began recording with his cell phone. Police arrested Glik and charged him with, among other things, violations of the wiretap statute. All charges against him were either dropped or dismissed and Glik filed a federal suit alleging that officers violated his civil rights. The officers argued official qualified immunity but the court denied it, and an appellate court upheld the ruling, holding that “a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.” Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011).

The Boston Police Department initially defended the officers and in 2008 issued a memo stating that the two officers involved did nothing wrong, but back in January the department stated that the two officers would face discipline and used “ureasonable judgment,” according to the Globe.

See other articles on the case by Massacusetts Lawyers Weekly, ARS Technica, and Carlos Miller’s blog.

Read an earlier NPPA post on the First Circuit decision of Glik v. Cunniffe.

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

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

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

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

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

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

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

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