June 13th, 2013 by and tagged Access, Arrest, California Department of Parks and Recreation, first amendment, free speech, journalism, law, Legal, Mickey Osterreicher, national press photographers association, NPPA, photographers, photography, photojournalism, photojournalist, recording, Southern California Edison, trespassing, video
A month after being notified the California Department of Parks and Recreation has responded to a letter sent by NPPA general counsel Mickey Osterreicher regarding an incident during which parks employees detained a news crew and ordered them to delete their footage. KGTV Team 10 reporter Mitch Blacher and photojournalist Arie Thanasoulis were on public property at San Onofre State Beach on April 29, 2013 shooting footage for a story on the San Onofre Nuclear power plant when they were approached by a parks employee who accused them of trespassing, blocked their vehicle and ordered them to stop recording.
That employee, later identified as Bob Warman, then called State Parks Police Officer Ennio Rocca who arrived and also proceeded to harass and threaten to arrest the pair for doing nothing more than recording video of the plant from an area open to the public. Officer Rocca in turn called an unidentified employee of Southern California Edison, who arrived on the scene dressed in full SWAT gear. The three of them then ordered the crew to delete whatever video they had already shot under threat of arrest.While the trio claimed the news crew was standing on private property, the “no trespassing” sign they referred to turned out to be for “no parking,” while a fisherman and a woman walking her dog are visible in video footage in an area they alleged was “secure.” Although the news crew complied with the unreasonable demand and deleted a file containing the footage they were able to broadcast a story using video contained on a second file.
In his letter Osterreicher called the actions of the parks officers “a clear violation of the First and Fourth Amendments.” “It is one thing for officers to act when there is probable cause, Osterreicher wrote, “it is quite another to abuse that discretion in order to create a climate that infringes upon free speech under the pretext of safety and security.” He requested that the “matter be fully investigated and the employees properly disciplined if so indicated.” Osterreicher also advised the department by email of another incident that occurred on May 14, 2103 involving its officers, who detained and questioned two other photographers, JC Playford and Gerry Nance, filming near the power plant gate.
Responding to the NPPA, California Department of Parks & Recreation Chief Counsel Claire LeFlore agreed that the officers had overstepped their bounds. “In hindsight, they may have acted with an overabundance of caution while detaining the news crew,” LeFlore said, “but there was never an intention to violate anyone’s constitutional rights.” LeFlore noted that the incident came shortly after the Boston Marathon bombing, and at that “staff was on high alert for the possibility of additional terrorist actions.” Osterreicher responded to that statement in a subsequent interview, saying, “it is indeed unfortunate that well-meaning people still somehow equate an act of terrorism with photography.” “In the Boston tragedy it should be duly noted that law enforcement requested anyone who had pictures or video of the event provide them voluntarily – not delete them,” he added.
The importance of defending sensitive targets is well understood, but, as Osterreicher noted, “in any free country the balance between actual vigilance and over-zealous enforcement is delicate.” LeFlore says all personnel involved in the incident have been counseled on how to properly deal with the press “so that First Amendment rights can be protected and both the press and [parks] staff can carry out their functions with minimal interference with each other.” Officers have also been counseled that there is no legal basis for the seizure or destruction of photographs or video.
Osterreicher also sent copies of his letter to officials from Southern California Edison, the owners of the plant but received no response. In its report 10News quoted a spokeswoman for the utility, as saying, “a security officer ‘responded conservatively when he indicated to a television crew his preference that they stop filming and delete their video.'” Osterreicher also responded to that statement, “Indicating a preference that someone stop filming is a far cry from illegally ordering someone to do so under threat of arrest.” “Aside from being factually incorrect, the arrogance of Southern California Edison in their failure to respond to our letter, unrepentant statements to KGTV and behavior of their employees speaks for itself,” he concluded.
The NPPA has offered to work with the California Department of Parks and Recreation to improve their guidelines and training regarding these matters in order to avoid similar situations. The parks department says it will consider NPPA suggestions in implementing an expanded staff training program.
KGTV reporter Mitch Blacher said in an email, “It is encouraging to see the California state parks police work to remedy the oppression of constitutional rights by their officers,” adding, “As American citizens and working journalists our treatment was highly troubling.” “More questions need to be asked as to why California parks police and staff followed the direction of non-sworn private security personnel instead of the federal and state constitutions they swore an oath to uphold.” 1oNews Special Projects Executive Producer Ellen McGregor added, “As a manager behind-the-scenes, who talked for quite some time on the phone with parks police that day, Mickey’s offer train the agencies on the First and Fourth Amendments proves the NPPA’s commitment to a free press, and the journalists at KGTV are grateful.”
Posted in Access, Assault on Photographers, Attack Photographers, California, detained, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording, Regulations limiting photography, trespass | No Comments »
April 23rd, 2013 by and tagged Access, Anti-Paparazzi Statute, Assembly Member Richard Bloom, California, Constitution, first amendment, free speech, journalism, legislation, Mickey Osterreicher, national press photographers association, NPPA, Paparazzi, photographer, photographers, photography, photojournalism, recording, trespassing, video
*** UPDATE *** In the wake of opposition from NPPA and other groups the CA Assembly Judiciary Committee made both AB-1256 and AB-1356 “2 year bills.” A 2 year bill is one which will not move out of the policy committee this year. It is eligible to be taken up again at the beginning of the 2nd year of the biennial session thus the term “2 year bill.” In January, the Legislature will hear all bills introduced in the 1st year and those that pass muster will begin to move through the process. This is very significant because every other anti-paparazzi bill that has been introduced has flown through the Legislature. This is the first time one has been held up. While the AB-1256 and AB-1356 are not dead, this indicates the sponsors may have a difficult time getting out of Judiciary in January.
The National Press Photographers Association (NPPA) today sent a letter to California Assembly Member Richard Bloom opposing two recently filed anti-paparazzi statutes that he sponsored. The NPPA was joined by twenty-six other organizations in sending this letter, including the Associated Press Media Editors, Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society, Bloomberg News, North Jersey Media Group Inc., The New Yorker, E.W. Scripps Company, The New York Times, The Los Angeles Times, Society of Professional Journalists, Radio Television Digital News Association, The Associated Press, National Public Radio, Inc., The McClatchy Company, Reuters News, Time Inc., The Washington Post, Reporters Committee for Freedom of the Press, Picture Archive Council of America, Cox Media Group, American Society of News Editors, California Newspapers Partnership, The First Amendment Coalition, Courthouse News Service, The Newspaper Guild, Communications Workers of America, Association of Alternative Newsmedia and San Francisco Bay Media Associates.
The letter is written in opposition to proposed bill AB-1256, “An act to amend Section 1708.8 of, and to add Section 1708.9 to, the Civil Code, relating to civil law.” Proposed bill AB-1256 would expand upon California’s constructive invasion of privacy law. The letter also expresses opposition to AB-1356, “An act to amend Section 1708.7 of the Civil Code, relating to stalking,” which would enhance California’s anti-paparazzi statutes.
“We believe the creation of a civil cause of action for the “constructive invasion of privacy” is overly broad and vague and imposes greater civil penalties upon otherwise protected forms of speech and expression,” wrote Mickey Osterreicher, general counsel for NPPA. Osterreicher continued, “We are also concerned that remedies for invasion of privacy and trespass are already properly addressed by current California statutes and that statutory and punitive damages will further chill free speech and create uncertainty about liability.” “Additionally,” stated Osterreicher, “the definition of “commercial purposes” fails to distinguish those acts done for valid newsgathering purposes and in fact penalizes publishers and broadcasters along with visual journalists and members of the public with a camera.”
In the letter Osterreicher cites recent Supreme Court cases which support NPPA’s position that AB-1256 and AB-1356 are unconstitutional, including U.S. v. Stevens, 559 U.S. ___, 130 S. Ct. 1577 (2010) (holding the Animal Crush Video Prohibition Act of 2010 unconstitutional); California v. Superior Court of California (Raef), Case No. BS140861 (holding California statute AB-2479, an anti-paparazzi statute, unconstitutional); and Branzburg v. Hayes, 408 U.S. 665 (1972) (holding that “without some protection for seeking out the news, freedom of the press could be eviscerated”).
In another related matter a California assembly member withdrew his proposed “ag-gag” bill hours before it was to be considered at a scheduled hearing.
The measure, AB-343, sponsored by Jim Patterson, R-Fresno, originally imposed a “duty to report animal cruelty” that would have required “any person who willfully or knowingly photographs, records or videotapes animal cruelty . . .” to “submit all original photographs, recordings or video to local law enforcement and the owner of the animal(s) or a representative of the owner within forty eight hours of taking such photographs, recordings or video.”
NPPA and other groups opposed the bill as violating the Shield Law provisions of the California Constitution and Code of Evidence; as well as being unconstitutional under the First, Fourth, Fifth and Fourteenth Amendments in that it abridged free speech and press and constituted an unreasonable seizure lacking in due process.
“The NPPA is very proud to have the support of so many state and national organizations in its fight against these ongoing First Amendment erosions,” said NPPA President Mike Borland. “We hope that lawmakers around the country will realize that there is a better way to address their constituent’s concerns than to propose unconstitutional bills,” he added.
Posted in ag-gag, anti-paparazzi, California, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, Paparazzi, photographers, Photographers' Rights, photojournalism, Recording, Regulations limiting photography | No Comments »
March 12th, 2012 by Mickey Osterreicher and tagged Access, Arrest, California, conspiracy, dismiss charges, first amendment, Interest of Juctice, journalism, journalist, Legal, Mickey Osterreicher, national press photographers association, NPPA, occupy wall street, OWS, photography, photojournalism, police, Reporters Committee, Santa Cruz, trespass, trespassing, vandalism
FOR IMMEDIATE RELEASE
DURHAM, NC — The National Press Photographers Association (NPPA) and The Reporters Committee for Freedom of the Press (Reporters Committee) filed a joint “Letter Brief” seeking the dismissal of charges against Bradley Stuart Allen in The People of the State of California v. Becky Ann Johnson et al, Case No. F22194. The brief asserts that Mr. Allen, who is a photojournalist and NPPA member, should not be criminally prosecuted for trespass, vandalism and conspiracy. He was charged after his photographic coverage of an Occupy Wall Street (OWS) protest in Santa Cruz, California last year.
Noting that the First Amendment’s guarantee of press freedom is meaningless if journalists do not possess a concomitant right to gather the news, the brief states that – while the allegedly violated statutes may serve important government interests, they cannot be exempt from First Amendment protection. Application of these laws in the prosecution of a journalist engaged in the constitutionally protected act of newsgathering demands careful balancing of these competing interests.
“While journalists may sometimes violate the letter of the law in order to obtain information of public concern, we believe it is extremely important for the court to also consider when such action occurs in the spirit and exercise of First Amendment rights,” said Sean D. Elliot, NPPA president. “Review of visual reportage subject to criminal penalties without that balance unfairly burdens newsgathering at its most critical need of protection,” he added.
This is just the most recent case where journalists have been interfered with and arrested while covering OWS protests throughout the country. In almost every case, those charges — ranging from disorderly conduct and obstruction of governmental administration to trespass — have been dismissed or the defendant journalists have been acquitted.”
About the National Press Photographers Association (NPPA)
The NPPA is a nonprofit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. Since 1946, NPPA has vigorously promoted freedom of the press in all its forms, especially as that freedom relates to visual journalism.
For more information, contact Mickey H. Osterreicher at 716.566.1484 or go to www.nppa.org. You can also follow us on Twitter @nppa.
Posted in Access, Bradley Allen, Conspiracy, First Amendment, First Amendment rights, Interest of Justice, law, Legal, National Press Photographers Association, News Photography, Newsgathering, NPPA, Occupy Wall Street Arrests, photographers, Photographers' Rights, photojournalism, Police, Reporters Committee for Freedom of the Press, Santa Cruz, Vandalism | 3 Comments »
June 21st, 2011 by Alicia Calzada and tagged Access, first amendment, law, Legal, national press photographers association, news industry, newspapers, NPPA, photographers, photography, photojournalism, police, police relations, social media, trespassing
The City of Ft. Lauderdale agreed on Monday not to interfere with photographers taking pictures near the set of the film “Rock of Ages.” At an emergency hearing in state court, the NPPA joined the South Florida Gay News and the Society of Professional Journalists as plaintiffs against the City, which had erected signs banning photography in public areas near a movie set. According to area photographer and activist Carlos Miller, at least one photographer was issued a citation for taking pictures from a public garage.
The Agreed Court Order states that the city:
“shall not prohibit or inhibit the taking of photographs at or from any public area surrounding, near or adjacent to the film set of the production of the film, “Rock of Ages. For the purposes of this order, the term “public area” shall includ any area where members of the public have a right to be, but shall not include areas that have been lawfully closed to access by members of the public.”
The movie, starring Tom Cruise and Catherine Zeta-Jones is being filmed in downtown Ft. Lauderdale, and the city had posted several signs in public areas stating that photography was strictly prohibited, even though those same areas were open to the public.
Some area photographers staged a protest on Friday drawing publicity to the illegal ban, and news organizations reported that the signs were removed, but police were still enforcing the ban.
According to the Gay South Florida News, one of the other plaintiffs in the suit, the city denied that it was interfering with the right to take pictures. However, the plaintiffs offered to provide witnesses to the contrary.
Though the injunction is in place, the plaintiffs intend to proceed with the lawsuit seeking a declaration that the city acted illegally.
A detailed report of hearing along with pictures, is available at the website www.journoterrorist.com.
NPPA will continue to provide updates as the lawsuit progresses.
The Agreed Order can be downloaded by clicking here.
Posted in Access, First Amendment, Florida, law, photographers, photojournalism, trespass | 1 Comment »
March 21st, 2011 by Alicia Calzada and tagged Access, blogging, farm, first amendment, law, legislation, national press photographers association, newspapers, photography, photojournalism, students, trespassing, video
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 whoÂ “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 »
March 18th, 2011 by Alicia Calzada and tagged Access, crop, farm, first amendment, HF 589, iowa, law, legislation, newspapers, photographers, photography, photojournalism, trade secrets, trespassing, video
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 Iowaâ€™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.Â .Â .Â [p]ossess or distribute a record which produces an image or sound occurring at the animal facility whichâ€ isÂ a â€œreproduction of a visual or audio experience occurring at the animal facility, including but not limited to a photographic or audio mediumâ€ without the consent of the owner.
To give some perspective to the blatant unconstitutionality of this bill consider this â€“ 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 canâ€™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 governorâ€™s desk.
Sec. 9.1(a)(2) makes it a crime to â€œPossess or distribute a record which produces an image or sound occurring at the animal facilityâ€ which was taken without permission of the owner.
Sec. 14.1.b makes it a crime to â€œPossess or distribute a record which produces an image or sound occurring at the crop operation which wasâ€ taken without permission of the owner.
Posted in Access, First Amendment, law, Legal, multimedia, photographers, photojournalism, trespass | 6 Comments »
March 2nd, 2011 by Alicia Calzada and tagged Access, first amendment, Legal, Mickey Osterreicher, national press photographers association, photojournalism, trespassing, video
A member brought it to our attention that a proposed bill in Florida would make it illegal to photograph a farm or other agricultural property without written consent of the owner. The language of the bill is worded broadly enough that a photographer making images of a farm from a public place would be committing a felony. We contacted the offices of the author of the bill and NPPA Attorney Mickey Osterreicher has received assurances from staff members that the bill is being amended to specifically relate to trespassers on private property.
We will monitor this closely, but photographers should be aware that even if the changes are made, this bill may still require written consent from the owner of any agricultural facility, whose property you are on, to allow any photography or videography and you may need to bring consent forms with you on assignments. This could put the subjects of stories in a bargaining position that interferes with objective reporting. Even with changes to clarify the public property exception, an element of the crime is photography which makes me very uncomfortable. We will continue to monitor.
Posted in First Amendment, Florida, Legal, photojournalism, trespass | 6 Comments »