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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 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 Replies to Comments Made by DCPI Browne Regarding “Mythical Arrests” of Journalists in NY

June 9th, 2012 by Mickey Osterreicher and tagged , , , , , ,

The NPPA has sent a response to comments made by DCPI Paul Browne during an interview with NYPD Commissioner Raymond Kelly and Queens Chronicle Editor-in-Chief, Peter C. Mastrosimone.

See:

http://www.qchron.com/editions/queenswide/kelly-talks-policy-and-politics/article_2671bf68-065f-5926-923f-0e6caedf25e2.html

As well as:

http://politicker.com/2012/06/nypd-spokesman-says-stories-of-reporters-arrested-at-occupy-raid-were-a-total-myth/.

The email:

Paul,

I read with disappointing disbelief your recent statement in the Queens Chronicle “that only one journalist was arrested during the operation, despite stories to the contrary,” which you called “a total myth.” I also found it incredulous that given our media coalition letter of November 21, 2011, which addressed the arrests of journalists in and around Zuccotti Park; and during our meeting with you and Commissioner Kelly on November 23, 2011, no one ever raised the issue that “Occupy Wall Street protesters were forging press credentials in an effort to get through the police lines.” To hear you now deny your department’s culpability by claiming that “actual reporters” were not arrested is an absolute revision of history and is more appropriate as part of “1984 Newspeak” than coming from the Deputy Commissioner for Public Information for the NYPD.

I will not get into the actual numbers of “journalists” arrested but suffice to say that many of those arrested have read your comments and find nothing “mythical” about what happened to them. I can also state, after having represented two NPPA members who were arrested and charged, that the court took judicial notice of the letters submitted on their behalf from Agence France Press and TV New Zealand when dismissing their disorderly conduct charges in the interest of justice. Even with updates to the Politicker story now acknowledging “two journalists” being arrested and assertions from Stu Loesser that “there’s no discrepancy” between his November statement that “five credentialed reporters” had been arrested, I would direct your attention to the facts found in the post – setting the record straight.

In a vain attempt to distinguish between real and “fake” journalists I would also suggest that the NYPD take note of the decision in Glik v Cunniffe, 655 F.3d 78 (1st Circuit, 2011) in which the court stated “that the First Amendment right to gather news is . . .  not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press. Houchins, 438 U.S. at 16, 98 S.Ct. 2588 (Stewart, J., concurring) (emphasis added).

The court went on to say “changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.” I cite this case not for the proposition that NYPD cease issuing credentials (although I do have a problem with your onerous credentialing requirements) but for you to consider that your revision of what actually transpired sounds more like the archaic “outside agitators” claim than it does of someone with an understanding of evolving standards of media technology and social policies.

The point is there were far more than one or two journalists who were arrested, detained  or interfered with while trying to cover a matter of public concern. During our meeting in November you in no way suggested otherwise. Journalists should not be arrested for viewing or covering protests in public places as long as they do not interfere with police actions, whether or not they have credentials. Credentials, as your guidelines state, give those journalists additional access in certain circumstances but in no way should that warrant or justify the arrest of non-credentialed observers in a public forum.

While we greatly appreciate the Commissioner issuing his Finest message as a result of our November meeting it appears, given your comments, that there is much more that needs to be done. I take this opportunity to once again offer our expertise in helping to implement improved guidelines and training of officers regarding First and Fourth Amendments rights. I have recently done such training with the Washington DC Metro Police as well as the Chicago, Tampa and Charlotte-Mecklenburg Police Departments in preparation for the NATO Summit and the upcoming national political conventions in those cities. I personally observed the protests in Chicago and found that the police exercised incredible restraint in handling the protesters and those covering the protests and did not differentiate between credentialed and non-credentialed press in allowing access. As a result only one Getty photographer was arrested during three full days of (non-permitted) protests through the streets of downtown Chicago. Working with the Reporters Committee for Freedom of the Press we were able to have the charges against him immediately reduced and expedite his release on bond.

If you and the Commissioner truly wish the new police academy to be the “West Point of law enforcement” I would strongly urge you to include the media in your training program rather than remain in a state of denial.

I look forward to continuing to strive together in an effort to improve police-press relations, the first step in which is keeping the facts straight.  Thank you for your attention in this matter.

Very truly yours,

Mickey H. Osterreicher
General Counsel
National Press Photographers Association (NPPA)

716.566.1484 (TEL)

716.983.7800 (CEL)
716.608.1509 (FAX)

NOTICE: This message (including any attachments) from Mickey H. Osterreicher, Esq. may constitute an attorney-client communication and may contain information that is PRIVILEGED and CONFIDENTIAL and/or ATTORNEY WORK PRODUCT. If you are not an intended recipient, you are hereby notified that any dissemination and/or disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information and/or this message is strictly prohibited. If you have received this message in error, please do not read, copy or forward this message. Please permanently delete all copies and any attachments and notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

 

 

Posted in Commissioner Raymond Kelly, DCPI Paul Browne, First Amendment, First Amendment rights, Mythical Arrests, National Press Photographers Association, News Photography, Newsgathering, NPPA, NYPD, Occupy Wall Street, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Politicker, Queens Chronical, Recording Police, Zuccotti Park | 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 »