In a phone interview for the Top Five Photojournalism Stories of 2012, NPPA General Counsel Mickey H. Osterreicher talked about the importance of the settlement of the Glik (in the First Circuit) and Alvarez (in the Seventh Circuit) cases. Both decisions affirmed the right of amateurs and professionals to record the police in public. Below is a transcript of an email interview where Osterreicher expounds on the importance of both cases.

How would you describe the importance of the Glik and Alvarez cases?

The importance of the Glik and Alvarez cases cannot be overstated. Having the First and Seventh Circuits for the U.S. Court of Appeals add their decisions to a growing body of case law that explicitly affirms the “coextensive” right of citizens and the press to photograph and record law enforcement officers and other government officials in the discharge of their duties in a public space as a vital and well-established liberty safeguarded by the First Amendment is of paramount importance.

The First Circuit’s ruling in Glik is controlling in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico, but its persuasive reasoning has been cited by courts and lawyers nationwide facing the recurrent issue of police arresting people for filming them.

The Seventh Circuit’s decision in Alvarez is binding on courts in Illinois, Indiana and Wisconsin but adds to the growing list of Circuits making similar findings.

These cases were built upon other circuit court decisions in prior years. In 2000 the Eleventh Circuit (controlling in Georgia, Florida and Alabama) in Smith v. City of Cumming held that “The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” In 1995 The Ninth Circuit in Fordyce v. City of Seattle, recognized a “First Amendment right to film matters of public interest.”

Some of the other Circuits have addressed this issue tangentially but to date these are the strongest findings.

 

Is it accurate to say this is the first time a federal court has so clearly affirmed the right to record the police in public?

It is not the first time that the Court of Appeals has addressed this issue but in the Glik decision we find a court that has articulated in very clear terms the importance and self-evident nature of the First Amendment right to openly record in public. In its decision the First Circuit also recognized the widespread proliferation of cellphone cameras and the likelihood that news may no longer just come from credentialed journalists. While Glik was a civil rights case brought by Mr. Glik against the defendants for violating his First and Fourth Amendment rights, Alvarez was a declaratory action brought to invalidate what the ACLU believed to be an unconstitutional statute. Citing Glik, the Seventh Circuit built upon that opinion by striking down an antiquated and draconian Illinois statute that provided law enforcement officers with an “unreasonable expectation of privacy” in a public place and made it a crime to record police without their permission.

 

What are the biggest challenges for access that photojournalists and the public still face, in your view?

Despite evolving case law reinforcing the right to record in public, we still see far too many situations where police do not recognize that right and continue to interfere with, harass and arrest those doing nothing more than exercising their First Amendment right to photograph and record in public. Members of the public along with visual journalists continue to find themselves subject to a pernicious form of prior restraint that not only chills their First Amendment rights but in many cases tramples them.

I believe there are a number of reasons for this, those being: lack of proper guidelines for and training of police officers, poor or non-existent leadership and failure to consistently discipline those officers who act improperly. The ongoing challenge for the NPPA and other organizations is to inform and educate police organizations, departments and individual officers regarding the importance of these constitutional rights. As I often say during my training – “because I said so” may work for your mother but a police officer’s order to do or not do something must be based upon legal authority. Unlawful actions under color of law may have the immediate effect of successfully abridging otherwise protected rights but at the end of the day may result in costly awards against police agencies, officers and municipalities for civil rights violations under state and federal law. In training police rather than bring costly lawsuits I often tell them in terms they can understand – we can do this the easy way or the hard way.