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California Anti-Paparazzi Law Would Threaten First Amendment Rights

August 16th, 2013 by and tagged , , , , , , , , , , ,

Earlier this summer the California legislature proposed a new “anti-paparazzi” bill, which NPPA opposes. More recently, Actresses Halle Berry and Jennifer Garner testified before the California State Assembly, voicing their support for the bill that carries with it serious First Amendment implications. The measure would make it illegal to photograph a child because of their parent’s job (i.e, acting) without the parent’s permission, and expands the scope of existing California harassment law while increasing the penalty for a violation.   Photographers convicted under the measure could face up to year in prison.  SB 606 would also allow an aggrieved party to pursue enhanced civil suit against a photographer.

If the bill is ultimately signed in to law, anyone with a camera who tries to get a snapshot of a celebrity’s child could be liable if their conduct “alarms, annoys, torments, or terrorizes the child” and causes “substantial emotional distress.”  It’s not the clearest of legal standards, and the bill doesn’t offer much more in the way of explanation, something NPPA General Counsel Mickey Osterreicher took issue with in opposing the bill.  “We are extremely concerned that the bill as it pertains to photography and recording is overly broad and vague and infringes upon otherwise protected forms of speech and expression,” Osterreicher said, also noting that the terms used in the bill are “vague and susceptible to subjective interpretation.”

The mercurial relationship between the Hollywood “paparazzi” and the stars they photograph is well documented.  Confrontations are not uncommon.   Protecting children is certainly a laudable goal, but there are already laws in place for situations when someone, photographer or otherwise, steps over the line.  With this in mind, Osterreicher contends that the measure in question unjustifiably blurs the line between actual harassment and valuable First Amendment activities, saying “[the bill] fails to recognize those acts done for valid newsgathering or expressive purposes and in fact creates additional liability for visual journalists and members of the public with a camera.”

“[T]he First Amendment has permitted restrictions on few historic categories of speech, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct,” Osterreicher continued. “Visual images and recordings of another person, albeit a child, who is out in public where there is no reasonable expectation of privacy should not be added to that list.”

Again, there’s a difference between punishing photographers who harass someone and defining photography as harassment in and of itself.

This isn’t the first time the California legislators have targeted photographers. A 2010 anti-paparazzi law was called into question earlier this year, when a judge threw out charges against a photographer who authorities say was driving recklessly while attempting to get picture of Justin Bieber.  The judge said the law was unconstitutionally broad and violated the First Amendment.   The NPPA along with the Reporters Committee for Freedom of the Press and six other media organizations filed and Amicus Letter Brief on behalf of the photographer. That ruling is currently under review.

SB 606 passed the California State Assembly and is set to go to appropriations committee.  As the bill moves closer to becoming law, legislators should take care not to allow a distaste for the manner in which some photographers conduct themselves to undermine their ability to uphold their duty to defend free speech rights guaranteed to all citizens.

Posted in anti-paparazzi, California, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, Paparazzi, photographers, Photographers' Rights, photojournalism, Public Photography, Reasonable Expectation of Privacy, Reporters Committee for Freedom of the Press | No Comments »

Photographer Prevails In First Amendment vs Privacy Case

August 5th, 2013 by Mickey Osterreicher and tagged , , ,

A New York City judge has ruled in favor of photographer Arne Svenson, who was being sued by the parents of minor children whose photographs appeared in an exhibit entitled “The Neighbors.”  In May of this year, Martha and Matthew Foster filed a complaint alleging among other things that Mr. Svenson had violated New York State’s Civil Rights Law by using images of their children without permission for commercial and promotional purposes. They had also sought  a preliminary injunction to prevent the dissemination, display and sale of those images.

Mr. Svenson, an artist and photographer, had taken the photos with a telephoto lens from his apartment of residents living across the street and included them in an exhibition at a Chelsea Gallery. That showing led to a number of news articles which in turn brought the issue to the attention of the Plaintiffs.

In dismissing the case, Judge Eileen  A. Rakower, denied the Plaintiffs Order to Show Cause for their failure to establish a likelihood of success on the merits. because she found the photos protected by the First Amendment as an art form and shielded from New York’s Civil Rights Law Sections 50 and 51. “Through the photos, Defendant is communicating his thoughts and ideas to the public,” she wrote adding “they serve more than just an advertising or trade purpose because they promote the enjoyment of art in the form of a displayed exhibition.” “The value of artistic expression outweighs any sale that stems from the published photos,” she wrote.

The judge also found that because “art is protected by the First Amendment, any advertising that is undertaken in connection with promoting that art is permitted.”  She further found that “‘The Neighbors’ exhibition is a legitimate news item because cultural attractions are matters of public and consumer interest” and that  news organizations and broadcasters  “are entitled to use Defendant’s photographs of Plaintiffs, which have a direct relationship to the news items – the photos are the focus of the newsworthy content.”

Noting that it might make parents “cringe to think their private lives and images of their small children can find their way into the public forum of an art exhibition, there is no redress under the current laws of the State of New York.”  She then concluded by stating,  “an individual’s right to privacy under the New York Civil Rights Law sections 50 and 51 yield to an artist’s protections under the First Amendment under the circumstances presented here.”

In a comment regarding the decision, Nancy E. Wolff, who helped  represent Mr. Svenson said, “I have always maintained that photos are entitled to First Amendment protection as expressive works, irrespective of whether they are sold or if they are otherwise commercially exploited”

The Plaintiff was represented by Richard G. Menaker, Esq. of Menaker & Herrmann LLP. The Defendant was represented by Nancy E. Wolff, Esq. and Matthew A. Kaplan, Esq. of Cowan, Debaets, Abrahams & Sheppard, LLP

 

Posted in First Amendment, First Amendment rights, Lawsuit, Photographers' Rights, Privacy, Reasonable Expectation of Privacy, Right of Publicity | No Comments »

ACLU v Alvarez – Will the Supreme Court Hear the Case?

July 11th, 2012 by Mickey Osterreicher and tagged , , , , , , , ,

As you may recall, last week I updated the case of ACLU v Alvarez regarding the constitutionality of the Illinois Eavesdropping Act (the Act) which makes it a crime to audio record police officers without their permission while they are performing their official duties in a public place.

Well now a case that appeared to be over – isn’t. After a motion hearing, held on July 3, 2012, newly reassigned District Judge Sharon Johnson Coleman granted the ACLU motion for the preliminary injunction and entry of amended complaint in compliance with the Seventh Circuit’s May 8, 2012 opinion. This has the effect of enjoining the State’s Attorney (or anyone else in Illinois) from prosecuting the ACLU or its employees under the Act “for openly audio recording police officers, and civilians talking to such officers, without the consent of the officers and civilians when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted ear of the person making the recording, and (d) the manner of recording is otherwise lawful.” While the language of the preliminary injunction specifically protects only the ACLU, one would hope that the state would also refrain from prosecuting anyone else under the Act, but given Ms. Alvarez’ dogged pursuit of this matter there is no guarantee.

The judge also heard arguments regarding State Attorney Alvarez’ motion to stay the proceedings while she seeks appeal from the United States Supreme Court. motion to stay “that that there is a reasonable probability that four [Supreme Court] justices will consider the issue sufficiently meritorious to grant certiorari, Judge Coleman granted the stay pending the filing the Writ of Certiorari.

In explaining her decision the Court took notice of the Seventh Circuit’s opinion finding the Act “an outlier in the country because it has no expectation of privacy provision and instead prohibits all non-consensual recordings.” But she also took note that “the Court has not considered the precise issues here – whether the police have any legitimate privacy interest in their public statements and activities while on duty, which is precisely why the Court may choose to hear the case.” Judge Coleman further rationalized that “while it may be likely that the Supreme Court will affirm the Seventh Circuit’s decision, it would likely do so with greater finality and expediency than if this matter proceeds in this Court and through a second appeal to the Seventh Circuit.” She also struck a proper balance by protecting both parties rights, finding that during the stay “Alvarez will not suffer any harm by not prosecuting anyone under this statute” while “the ACLU has the benefit of a preliminary injunction protecting their activities and precluding prosecution under the Act.”

She has scheduled a status hearing for 10/29/2012 at 9:00 a.m. And so the saga continues.

Posted in ACLU v Alvarez, Chicago, Chicago Police, First Amendment, First Amendment rights, Illinois, Illinois ACLU, Illinois Eavesdropping Law, National Press Photographers Association, News Photography, Newsgathering, NPPA, Photographers' Rights, Reasonable Expectation of Privacy, US COurt of Appeals for the 7th Circuit | No Comments »

ACLU v Alvarez: The Case Continues

July 5th, 2012 by Mickey Osterreicher and tagged , , , , , , , ,

For those of you following the case of ACLU v Alvarez regarding the constitutionality of the Illinois Eavesdropping act the case is far from over despite the opinion by the United States Court of Appeals for the 7th Circuit on May 8, 2012.

Three days later, Appellee Anita Alvarez filed a motion to extend time to file a petition for rehearing and the ACLU filed a response in opposition. Interestingly enough, both parties used the approaching NATO Summit as the justification for their motion: the State’s Attorney, because her staff was busy preparing for it; and the ACLU, because it wished the preliminary injunction immediately put into effect to prevent the enforcement of the Act during the Summit. On May 15, 2012 the court granted the motion to extend the time to file and on May 29, 2012 in accordance with that order the Appellee filed a petition for an en banc rehearing.

As part of its petition, the State’s Attorney claimed that “[t]he panel majority decision . . . creates [an] unlimited First Amendment right of the public to engage in audio-recording and surveillance of public officials encountering private civilians regardless of whether the persons speaking consent to such recording.” Arguing that the Act “requires the recorder to obtain consent from the putative speakers as a prerequisite to recording,” the State’s Attorney maintains that the Act ultimately “regulates conduct (i.e., failing to obtain consent) not speech.”

Following denial of that motion by the 7th Circuit on June 14, 2012 and the transfer of the case to District Judge Sharon Johnson Coleman, the ACLU filed for entry of its amended complaint and for the implementation of the preliminary injunction on June 25, 2012. The next day it moved for summary judgment. Not surprisingly, on June 28, 2012 the State’s Attorney once again moved “to stay all proceedings in the District Court so that State’s Attorney Alvarez may prepare and file a petition for writ of certiorari in the instant case to the United States Supreme Court. Alternatively, State’s Attorney Alvarez moves to stay briefing of Plaintiff’s motion for summary judgment and allow discovery.”

The ACLU entered its opposition to that motion on July 2, 2012, asserting that “Alvarez does not meet any of the requirements for a stay pending the filing and disposition of a writ of certiorari;” and citing Hollingsworth v. Perry, 130 S. Ct. 705 (2010) for the proposition that “To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.”

Among other things, the ACLU argued that the State’s Attorney cannot “meet her burden of proving . . . a reasonable probability that four Justices will vote to grant certiorari;” “that she cannot meet her separate burden of proving ‘a likelihood that irreparable harm will result from the denial of a stay;’” and that she did not articulate with specificity (or in any way whatsoever) facts necessary to overcome  a motion for summary judgment.

Stay tuned for further developments in this ongoing case.

Posted in ACLU v Alvarez, Certiorari, Chicago, Chicago Police, Federal Court, First Amendment, First Amendment rights, Illinois, Illinois ACLU, Illinois Eavesdropping Law, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Reasonable Expectation of Privacy, Recording, Recording Police, US COurt of Appeals for the 7th Circuit, US Supreme Court | No Comments »

7th Circuit Court of Appeals Upholds Right to Record in Public

May 8th, 2012 by Mickey Osterreicher

The United States Court of Appeals for the Seventh Circuit today granted a preliminary injunction, blocking enforcement of the Illinois Eavesdropping statute as it applies to audio recording of police performing “their duties in public places and engaging in public communications audible to persons who witness the events.”

According to 7th Circuit Opinionthe Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees.

The NPPA along with other media groups had submitted an amicus brief in support of the ACLU position, which now aligns with the decision in the First Circuit in Glik v Cunniffe. The 3 judge panel in this case found that “the Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus trig­gering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communica­tion, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious.”

The court did not adopt the Illinois argument that the government’ had an “interest in protecting conversational privacy,” finding instead that “the Illinois eavesdropping statute restricts far more speech than necessary to protect legiti­mate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free-speech and free-press guarantees.”

“In short, the eavesdropping statute restricts a medium of expression—the use of a common instrument of com­munication—and thus an integral step in the speech process. As applied here, it interferes with the gathering and dissemination of information about government officials performing their duties in public. Any way you look at it, the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny.”

Not surprisingly in his dissent , Circuit Judge Richard A. Posner continued the  suppositions and parade-of-horribles that he first articulated during the oral argument in this case last October. Advocating for a reasonable expectation of privacy for police and others when speaking in public he conjectured about how “in many of these encounters the person con­versing with the police officer may be very averse to the conversation’s being broadcast on the evening news or blogged throughout the world.” Once again erroneously seeking to trample on the First Amendment right to record in public in order to protect against the possibility of a perceived right of privacy tort arising should such conversations be published.

Fortunately Judges David F. Hamilton and Diane S. Sykes had the good sense to recognize that “the Illinois eavesdropping statute obliterates the distinction between private and nonprivate by criminalizing all nonconsensual audio recording regardless of whether the communication is private in any sense.” (emphasis in the original).

 

Posted in Access, ACLU v Alvarez, First Amendment, First Amendment rights, Illinois ACLU, Photographers' Rights, Reasonable Expectation of Privacy, Recording, Recording Police | No Comments »

Rep. Nekritz Re-introduces Bill to Amend IL Eavesdropping Law

May 8th, 2012 by Mickey Osterreicher

Illinois Rep. Elaine Nekritz, has sponsored a new bill that would amend the draconian measures found in the state’s current Eavesdropping law. SB 1808 amends the Illinois Criminal Code concerning eavesdropping exemptions and provides that a person may record the conversation of a law enforcement officer who is performing a public duty in a public place and any other person who is having a conversation with that law enforcement officer if the conversation is at a volume audible to the unassisted ear of the person who is making the recording.

The bill also defines “public place” and provides that if a recorded conversation authorized under this exemption is used by a complainant as part of the evidence of misconduct against a police officer and is found to have been intentionally altered by or at the direction of the complainant to inaccurately reflect the incident at issue, it must be presented to the appropriate State’s Attorney for a determination of prosecution.

Current Illinois law permits videotaping officers in public but criminalizes the interception of oral communication (audio recording) without the consent of all parties. A conviction on such a felony charge could result in a 15 year jail sentence. Some recent prosecutions under the current law have resulted in acquittals and in others the trial court judge found the statute to be unconstitutional. Supporters of the bill believe it strikes the right balance between the reasonable expectation of privacy and the First Amendment by allowing citizens to audio record law enforcement officers performing public duties in public places.

In a similar case, Glik v. Cunniffe,  the United States Court of Appeal for the First Circuit found the public and the press have a “co-extensive” right to record officers in public places.  In another case, Sharp v Baltimore City Police, the United States Department of Justice filed a Statement of Interest in support of such recordings. The ACLU has challenged the constitutionality of the Illinois Eavesdropping statute in ACLU v Alvarez and a decision is expected by the Seventh Circuit any day. The Chicago Police Department recently announced that it would not seek to enforce the law during the NATO Summit scheduled for later this month.

NPPA submitted Comments in support of a previous bill that recently failed in the House by 15 votes. Not surprisingly police organizations opposed that measure citing fears that people might edit or alter the recordings to use as evidence of officer misconduct. The new bill addresses those concerns. According to Rep. Nekritz, the new bill “would address some high-profile prosecutions that occurred under the existing  eavesdropping law of citizens who have done nothing more but take out their cell phones and record a police officer performing public duty.”

The State Journal-Register, The Southern, Chicago Sun-Times, and Chicago Tribune have all written editorials in support of this measure and it is also supported by the Illinois State Bar Association, Illinois Press Association and the American Civil Liberties Union. The bill has already passed out of the Houses Judiciary Committee on Civil Law and will be brought to the floor sometime in the next few weeks.

Posted in Access, ACLU v Alvarez, cell phone cameras, Chicago, Chicago Police, DOJ, First Amendment, First Amendment rights, Glik v Cunniffe, Illinois, Illinois Eavesdropping Law, Illinois General Assemby, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Reasonable Expectation of Privacy, Recording, Recording Police, Rep. Elaine Nekritz | 1 Comment »

Right to Record–Recording in Public Meetings is a Right in Arkansas

April 3rd, 2012 by Alicia Calzada and tagged , , , , , , , ,

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.

 

Posted in Access, blogging, broadcasting, First Amendment, News Photography, Newsgathering, photographers, Photographers' Rights, photojournalism, Public Forum, Public Photography, Reasonable Expectation of Privacy, Recording, Regulations limiting photography | No Comments »

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