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NPPA files Amicus Brief Supporting Right to Photograph and Record Police in Public

June 2nd, 2014 by and tagged , , , , , , , , , , ,

The NPPA filed an Amicus Brief today in a federal civil rights lawsuit involving an Austin, Texas man, who says that police violated his constitutional right to photograph and/or film police in a public setting.

In his complaint Antonio Francis Buehler alleged that he was arrested on a number of occasions while recording Austin Police officers performing their official duties in public places. As a result of these incidents Buehler formed the Peaceful Streets Project, a group which routinely videotapes police officers in the city.

Buehler filed suit against the Austin Police Department and several police officers for violations of his civil rights. The defendants in the lawsuit then moved to dismiss the suit, and claimed “qualified immunity,” which protects government officials from being the subjects of lawsuits unless they have violated a clearly established constitutional right.

“The NPPA chose to file an amicus brief so early in this case because of the extraordinary and incredulous claim by the Austin Police Department that ‘the Fifth Circuit does not recognize photographing/videotaping police officers as a constitutional right,'” said NPPA Advocacy Chair Alicia Calzada.

The brief counters the police department’s argument that the “First Amendment right to videotape law enforcement is not a cognizable claim,” as being incorrect as a matter of law and also because it frames the issue far too narrowly.  Rather, the constitutional right to film police officers while on duty has been well established for decades through numerous constitutional decisions that protect the “coextensive” rights of journalists and members of the public to gather information and to hold government officials accountable for their actions, as the First Circuit Court of Appeals held in the 2011 case of Glik v. Cunniffe. In Glik, a citizen was arrested after using his cell phone to photograph Boston police officers he believed were using excessive force in effectuating an arrest. After his charges were dismissed, Glik filed a civil action against the Boston Police Department and won because the First Circuit observed that a citizen’s right to film police officers on duty is a “basic, vital, and well-established liberty protected by the First Amendment.”

Several other cases have affirmed that the right to film police officers while on duty is clear and unambiguous, thus further weakening the Austin Police Department’s dubious claim. Most recently, the First Circuit reaffirmed this principle, denying qualified immunity in a case that involved videotaping police during a traffic stop in the case of Gericke v Begin. The court in Gericke explained that some constitutional principles are self-evident and do not need to have a case directly on point.

The United States Department of Justice (“DOJ”) has also affirmed this right in  multiple Statements of Interest, explaining that over eighty years of precedent, going back to the 1931 case of Near v. Minnesota, stand for the proposition that “government action intended to prevent the dissemination of information critical of government officials, including police officers, constitutes an invalid prior restraint on the exercise of First Amendment rights.”

The law is also clear that these constitutional protections apply as much to individuals as they do the institutional press, something the NPPA has consistently noted. “NPPA has always fought to uphold the right to photograph and record in public for everyone,” said NPPA Generasl Counsel Mickey H. Osterreicher. “While the press may not have any greater right of access than the public, they have no less right either and the last thing we want is for the government to be the arbiter of who is entitled to ‘Free Speech’ or ‘Free Press’ First Amendment protection,” he added.

The amicus brief was drafted pro bono by attorneys Robert Corn-Revere, Ronald London, and Alison B. Schary, with the law firm of Davis Wright Tremaine, who have generously supported this and other NPPA efforts to promote and uphold the right to take pictures in public. Corn-Revere, London and Schary were recipients of the 2013 NPPA Kenneth P. McLaughlin Award of Merit for their efforts in support of the First Amendment.

 

 

 

 

Posted in Austin Police, Boston Police, cell phone cameras, Department of Justice, DOJ, First Amendment, First Amendment rights, Glik v Cunniffe, law, Lawsuit, Legal, Newsgathering, photographers, Photographers' Rights, photojournalism, Police, Recording, Recording Police, Simon Glik, Texas | No Comments »

U.S. Supreme Court Finds in Favor of Funeral Protesters, Protecting Speech

March 2nd, 2011 by Alicia Calzada and tagged , , , , , , , ,

By Mickey H. Osterreicher, NPPA General Counsel

This morning the U.S. Supreme Court issued an 8-1 decision in Snyder v. Phelps, holding that the First Amendment shields Westboro Baptist church protesters “from tort liability for its picketing” of Marine Lance Corporal Matthew Snyder’s funeral after he was killed in Iraq in 2006. It was a case that found media groups (including NPPA) having the dubious duty of filing an amicus brief supporting the protesters First Amendment rights no matter how distasteful/abhorrent the message.

The case arose when some of the congregants of the Westboro Baptist Church, who have picketed military funerals for over 20 years based upon the belief that G-d hates the United States for its tolerance of homosexuality, particularly in the military, went to Maryland to voice their protest. According to the record, “the picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers.” The picketers peacefully displayed signs containing various condemnations prior to the funeral where Matthew Snyder’s father, who is the petitioner in this case allegedly “saw the tops of the picketers’ signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.”

The elder Snyder then filed a federal suit alleging among other things “state tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.” A jury found Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages. Westboro appealed. The lower court reduced the punitive damages award, but let the remainder of the verdict stand. On appeal the Fourth Circuit reversed, finding that “Westboro’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.”

Attorney Marjorie Phelps, daughter of Westboro Baptist Church Pastor Fred Phelps, on the steps of the U.S. Supreme Court moments after arguing the case on behalf of her church. Photo by Mickey Osterreicher.

In the opinion, written by Chief Justice Roberts, the Court found that the First Amendment insulated the protesters actions from the Snyder’s claims for intentional infliction of emotional distress; that the claim for intrusion upon seclusion was not supported by the facts where the protesters did not cause any “interference with the funeral itself;” and, because those two claims failed there could be no claim for civil conspiracy.

What is important to note is that the case was decided along its limited facts concerning the actual protest at the funeral, declining to address the issue of an allegedly hurtful Internet posting on the church’s website, found by Snyder after the funeral.

Chief Justice Roberts also noted in the opinion “[g]iven that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.”

The Court pointedly stated, “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.”

The Chief Justice concluded “[s]peech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.”

Justice Breyer filed a concurring opinion acknowledging the limitations of the Court’s holding that it did not protect all activity focused on matters of public concern. Justice Alito was alone in his dissent, writing that “[o]ur profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”

In an amicus brief, the NPPA along with 21 other news organizations argued that “far more is at stake in this case than the ability of the Westboro Baptist Church to protest near military funerals. This case concerns an issue critical to a wide range of speakers, including members of the news media: whether a plaintiff may recover for intrusion and intentional infliction of emotional distress where the harm is based upon the publication of controversial speech about matters of public concern.”

Robert Corn-Revere of Davis Wright Tremaine LLP in Washington, D.C. drafted the amicus brief on behalf of the media.

The brief further noted that “[m]ost reasonable people would consider the funeral protests conducted by members of the Westboro Baptist Church to be inexplicable and hateful.” “Without a doubt, the church’s message of intolerance is deeply offensive to many, and especially so to gay Americans, Catholics, veterans, and the families of those who sacrificed their lives defending the United States. But to silence a fringe messenger because of the distastefulness of the message is antithetical to the First Amendment’s most basic precepts.” As an expression of the conflict inherent in this case the brief stated “[t]his case tests the mettle of even the most ardent free speech advocates because the underlying speech is so repugnant. However, the particular facts of this case should not be used to fashion a First Amendment exemption for offensive speech.”

Mickey Osterreicher signed onto the amicus brief on behalf of the NPPA and attended the oral argument held before the High Court on October 6, 2010.

Posted in First Amendment, law, Legal, Uncategorized | No Comments »