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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 »

Some Practical Advice about Covering High Conflict News Stories

April 28th, 2015 by Mickey Osterreicher and tagged , , , , , , , , , , , , ,

See the attached document containing some practical advice about covering high conflict news stories.

Issues covered:

  • Legal
  • Local Ordinances
  • Federal Trespass
  • Resources
  • Important items to have with you
  • Potential for arrest
  • Complying with police orders
  • Being questioned and detained
  • Protecting your files
  • Arrest & release
  • Practical advice
  • Preparation
  • Your equipment

These have been put together as a result of covering the NATO Summit in Chicago in 2012 the political conventions in Tampa and Charlotte later that year and the demonstrations in Ferguson in 2014.

For more information please contact:

Mickey H. Osterreicher

Cell 716.983.7800

Email [email protected]

Twitter @nppalawyer

 

 

Posted in Access, Baltimore Police, Baltimore Riots, cell phone cameras, Ferguson, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, Legal, Maryland ACLU, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording Police, Reporters Committee for Freedom of the Press, retaliation for the exercise of First Amendment rights | No Comments »

A Tale of Two Cases: How Photographers Are Being Squeezed From All Sides

November 20th, 2013 by Mickey Osterreicher

Today was a picture perfect example of how photographers are being squeezed from all sides. On the front end photographers are being interfered with and arrested on an almost daily basis nationwide for doing nothing more than trying to do their jobs by photographing and recording matters of public concern on city streets.

In one such case a NYC Criminal Court jury acquitted photographer Jason Nicholas today on a misdemeanor count of Obstructing Governmental Administration. Mr. Nicholas was arrested in 2011 for allegedly interfering with NYNJ Port Authority Police while covering a news story. A previous trial resulted in a hung jury but the district attorney chose to re-try him. Afterwards Mr. Nicholas said, “this is a victory for us and a swift and resounding defeat for the police and prosecution!” “Now maybe we can get this to stop on behalf of all journalists,” he added.

On the back end where photographers works are being used globally without their permission, Daniel Morel was sitting in a federal courtroom a few blocks away from Mr. Nicholas. He is pitted against Agence France Press (AFP) (and Getty Images) in a copyright infringement case. Read about this case along with updates here.

Liability for infringement has already been established. The only remaining defendants in the counterclaim case are AFP and Getty Images, as the other defendants have already settled with Mr. Morel.  All that is left for the jury to decide is how much each of them (AFP & Getty) must pay in damages. Click here for a running blog of the six (6) days of testimony.

Attorneys for both sides are expected to make their closing arguments tomorrow morning in the Southern District of New York Courthouse located at 40 Foley Square in New York City. Judge Nathan’s courtroom is on the 5th floor for those of you able to attend.

So on one day within a few blocks of each other I was able to view some of the major challenges facing photographers around the world and also witness how two of them chose to stand up for their rights and by so doing take a stand against those who would violate our constitutional and copyrights.

 

Posted in Access, AFP v Morel, Agence France-Presse, Assault on Photographers, contracts, copyright, copyright infringement, Daniel Morel, False Arrest, First Amendment, First Amendment rights, Fourth Amendment rights, Getty, Lawsuit, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Recording Police, retaliation for the exercise of First Amendment rights, social networking, Twitpic, Twitter | No Comments »

Florida Prosecutor Drops Charges Against NPPA Member; Lawsuit Filed

March 30th, 2012 by Mickey Osterreicher

In January of this year Stephen Horrigan, an NPPA member was charged with felony eavesdropping and misdemeanor obstruction for using his cellphone to record a traffic stop by police officers in North Port, Florida. Horrigan came out of his nearby home to see what was going on and determine the newsworthiness of the situation. For doing nothing more than that, as he stood with other members of the public, he ended up spending a night in jail while facing a five year prison term if convicted on the eavesdropping charge. Adding insult to injury the police seized his phone as “evidence” and held it until recently.

On January 30. 2012 NPPA sent a letter to North Port Police Chief Kevin Vespia, strongly objecting to “the treatment and arrest of NPPA member and freelance photojournalist Stephen P. Horrigan.” The letter went on to state “in addition to the arrest, the fact that Mr. Horrigan’s camera was unlawfully seized is also extremely troubling. We believe that his video of the incident will show that officers acted in an arbitrary, capricious and unprofessional manner and appeared to have no concept of the First and Fourth Amendment rights granted under the United States Constitutions as well as similar protections provided by Florida law.” The letter concluded with the request “that the charges against Mr. Horrigan be immediately dropped; that his equipment and any recordings made by him be immediately returned; and that this incident be fully investigated. We further request that your department immediately issue orders directing officers to cease such activity and also that your department implement revised training for all officers regarding these matters.”

This case was covered extensively in the press by Billy Cox of the Sarasota Herald-Tribune and Carlos Miller of Photography is Not a Crime. As a justification for trampling on the rights of a citizen they produced a Probable Cause Affidavit and also referred to “a legal guideline that our officers have read and discussed during roll call. The issue here is not the video portion but the audio portion. This is the current guideline we use for cases like these. The guideline was issued by the legal counsel of the Palm Beach County Sheriff’s Office and permission was granted for distribution,” according to North Port Police Captain Robert Estrada, in an email.

After reviewing that “January 2010 North Port Police Bulletin #10-12” along with a Law Enforcement News Letter the NPPA sent a scathing email back to Captain Estrada and Chief Vespia citing cases and correcting the misinformation provided in the bulletin concerning the circumstances under which there may and may not be a “reasonable expectation of privacy.” Although there had been some positive dialogue between NPPA and the North Port Police there was no response to the email or even acknowledgement that it had been received.

In February an attorney from the Florida ACLU, Andrea Mogensen agreed to represent Mr. Horrigan, who as of March 11, 2012 had still not heard from the State Attorney’s Office (SAO) as to whether they planned to move forward on the original charges. On March 13, 2012 the Herald-Tribune printed a column by Eric Ernst supporting Horrigan’s’ position. Shortly thereafter Horrigan filed (on his own) a Motion for Hearing: A Plea for Relief from Prior Restraint seeking the return of his smartphone, battery and memory card, and alleging, among other things that the seizure of those items violated the First Amendment to the U.S. Constitution and Article I, Section 4 of the State of Florida Constitution as being a form of prior restraint on his ability to publish that material. He also asserted that as the operator of “a web-site news-gathering ‘blog’ and dues paying member of the National Press Photographers Association” he may not have any greater rights under the First Amendment than the public but that he enjoyed no less right because of it.

A week later a detective came to his house at 7am to tell him that he could pick-up his phone at the evidence room. In utter surprise he found that the video had not been deleted, although he believes that it had been viewed or copied. He posted it on YouTube for everyone to see. So far it has over 4,200 hits. The Herald- Tribune posted an editorial urging police, prosecutors and legislators to improve their guidelines, training and practices and also revise the eavesdropping statute.

Yesterday the SAO declined to prosecute and dropped the charges, noting in a memo that the people could not meet their burden of proof beyond a reasonable doubt and also questioned whether the officer had an expectation of privacy in this instance. As for the “resisting, obstructing, or opposing an officer without violence charge,” State’s Attorney Eric Werbeck concluded that Horrigan did not meet any of the elements constituting that crime either.

While the NPPA is gratified to see that prosecutors had the common sense to drop these charges (as has happened in almost all such cases around the country) it is too bad that the North Port police did not use the same good judgment. As is often said in police parlance “we can do this the easy way or the hard way.” The latter choice resulted in six-figure settlements in two recent cases. Once again, it appears that police ignorance and arrogance concerning constitutional rights may result in another costly combination, ultimately born by taxpayers who can ill afford it.

In a late-breaking development Ms. Mogensen announced in a press release that she has filed a notice with the City of North Port claiming monetary damages in excess of $200,000.00 based upon false arrest, retaliation for the exercise of First Amendment rights, and malicious prosecution.

Posted in Access, confiscated, detained, False Arrest, First Amendment, First Amendment rights, Florida, FLorida ACLU, Fourth Amendment, Fourth Amendment rights, Lawsuit, Legal, Malicious Prosecution, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Forum, Public Photography, Reasonable Expectation of Privacy, Recording, Recording Police, retaliation for the exercise of First Amendment rights, Search and Seizure, video cameras | 2 Comments »