Florida Farm Bill Update

March 21st, 2011 by Alicia Calzada and tagged , , , , , , , , , , , ,

Mixed news on the Florida Farm bill (SB 1246) today. The Florida Senate Committee on Agriculture approved the bill, but before they did they passed two amendments to the language of the bill.

The first amendment changes the language of the bill so that it only applies to trespassers who enter the property, and exempts law enforcement and agents of the Department of Agriculture. The bill now only applies to someone who  “enters onto a farm or other property … produces audio or video records without the written consent of the owner or an authorized representative of the owner,”

The second amendment changes the crime from a felony to a misdemeanor.

While we still don’t like any law that targets photography, these amendments have addressed our primary concerns- that photography elevated a trespass crime to a felony, and that photography from a public place could be illegal. We will sleep better in Florida now.

As a side note, the tools available on legislative websites can be very interesting if you take a minute to poke around. Here is an analysis of the bill that specifically mentions the now-changed constitutional problems.

Posted in Access, First Amendment, Florida, Legal, photographers, photojournalism, trespass | No Comments »

How Sausage is Made

March 19th, 2011 by Alicia Calzada and tagged , , , , , , , , , , ,

According to the Florida Independent, the Florida Farm Photography Bill was brought at the behest of a large egg producing corporation, Simpson Farms.

An Associate Press article also talks about the origins of the bills, stating that the author of the Iowa bill is Republican Rep. Annette Sweeney, is “a rancher from the north-central Iowa town of Alden.”

It is important to note that the Iowa House has already passed the bill. So photographers in Iowa need to contact their senators (a similar bill is pending in the Senate) and their governor to block this law.

I wanted to also note, that while much of the attention has been focused on treatment of animals, this bill would also affect exposes on illegal immigrants working on farms, safety issues related to farm workers, and violations of safety regulations related to food handling.

Posted in Access, First Amendment, law, Legal, photojournalism | No Comments »

Iowa Goes Too Far with Farm Bill

March 18th, 2011 by Alicia Calzada and tagged , , , , , , , , , , , , , ,

Recently we told you about a bill banning photography of farms in Florida. We have learned that there is a similar bill, prohibiting photography (among other things) of farms and crops without the permission of the owner. The Iowa bill has been compared to the Florida bill, but a quick read of the bill shows that it is far worse. To Iowa’s credit, it appears that photography from the street wouldn’t be affected, however, mere possession and distribution of undercover photography of a farm would be a crime. This elevates editors and news organizations to the status of criminals if they publish, or even possess undercover footage of farms, crops or animal facilities.

Specifically the bill states that “distribution or possession” of photographs that were illegally obtained (through violations of earlier portions of the bill). Under the proposed law, “A person is guilty of animal facility interference if the person. . . [p]ossess or distribute a record which produces an image or sound occurring at the animal facility which” is  a “reproduction of a visual or audio experience occurring at the animal facility, including but not limited to a photographic or audio medium” without the consent of the owner.

To give some perspective to the blatant unconstitutionality of this bill consider this – the only time that the Supreme Court has upheld a law that bans distribution and possession of any kind of photography it was a law against possessing and distributing child pornography. As powerful of a lobby farmers are, elevating exposes of farms to the level of child pornography is absurd and I can’t see how this would hold up. Just last year the Supreme Court ruled that a law banning possession and distribution of video of cruelty to animals was unconstitutional. See U.S. v. Stevens, 130 S.Ct. 1577 (2010). The intent of that law was to prevent animal cruelty but even it went too far (the NPPA signed an amicus brief advocating for the overturning of that bill).

The government can’t even prevent the possession and distribution of documents that put U.S. security interests at risk so it is hard to imagine how the public relations interests of farms would be considered more compelling than U.S. security interests.

Several years ago (2001), in a case called Bartnicki v. Vopper, the Supreme Court ruled that when a news organization lawfully obtained a recording, they could not be held liable for the publication of the details of the recording, even though the recording itself was illegally obtained. The Iowa law would make a news organization liable for publishing a recording, even if the news organization had nothing to do with obtaining the recording.

The NPPA has contacted lawmakers in Iowa regarding the bill.

Journalists and Photographers in Iowa should be very concerned about this bill. While it would no doubt be struck down in court, it is much easier for all of us if it never makes it to the governor’s desk.

From HF589:

Sec. 9.1(a)(2) makes it a crime to “Possess or distribute a record which produces an image or sound occurring at the animal facility” which was taken without permission of the owner.

Sec. 14.1.b makes it a crime to “Possess or distribute a record which produces an image or sound occurring at the crop operation which was” taken without permission of the owner.

Posted in Access, First Amendment, law, Legal, multimedia, photographers, photojournalism, trespass | 6 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 »

Law and Ethics in Multimedia– panel discussion video available

May 20th, 2010 by Alicia Calzada and tagged , , , , , , , , , , , , , , , , , , , , , , ,

The legendary Multimedia Immersion Workshop had a great panel on ethics and legal issues a couple of days ago. The best part, for those of us who weren’t able to make it to Syracuse, is that the entire discussion is available online. The panelists were an extraordinary group of experts, including Mickey H. Osterreicher (NPPA general counsel), along with panelists Barbara Fought, Roy Gutterman, Evan Vucci, and Will Sullivan.

The panelists debunked the myth of the 30-second rule regarding the use of music as well as clarifying many other legal issues for photographers. Issues addressed included: using music in multimedia presentation; licensing; using your images in a portfolio; shield law; trespass; commercial use vs. journalism; copyright issues; access; creative commons; and important contemporary cases.

Follow this link, and click on the box below that says “Immersion Ethics Panel, May 18, 2010.” (forgive the commercials, I will see if I can’t get a clean download version).

Posted in copyright, ethics, law, Legal, photographers, photojournalism, students | No Comments »

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