Right to Photograph Events Happening in Public? Dallas Photographer Files Suit in US Northern District
Right to Photograph Events Happening in Public? Dallas Photographer Files Suit in US Northern District
27 September 2016 at 10:44:44 AM
I photograph and video record events, mainly local government meetings, but sometimes have recorded other types of events, like Barnards on the Brazos, or the Queens Contest. I'm also very interested in reading about First Amendment issues and where news media and/or the public's right to share information stops or starts. One can see this as a larger issue with recording police/citizen interactions as well. Recently a Dallas photographer filed suit in federal court (US Northern District-you can also look directly at the case through pacer) because he was arrested while trying to take a photograph of an incident occurring at a Dart station.
What is the culture of honesty or lack thereof at DART, a vast agency with a nearly billion-dollar annual budget and police jurisdiction in 13 cities? When DART tells the big dogs something about a billion-dollar construction project or when it tells us little dogs something about the arrest of a photographer, how much trust should we invest in what DART says?
Adelman was downtown one night last February documenting the K2 synthetic marijuana epidemic. He came upon three DART police officers and two Dallas Fire and Rescue paramedics dealing with a semi-conscious person who appeared to be suffering an overdose. Adelman started shooting pictures.
Adelman was arrested by Stephanie Branch, a veteran DART police officer, and he spent a day in jail. When KERA reporter Bill Zeeble asked DART why Adelman had been arrested, the response came from Morgan Lyons, DART’s assistant vice president for communications and community engagement.
....Now, in the fullness of time, we know that almost none of what Lyons told Zeeble was true. And what was not true was not merely mistaken but proceeded from a string of deliberate lies told to DART’s own investigators by Branch.
Adelman says DART never apologized to him for his false arrest and "refused even to discuss a resolution of this matter." He does not know whether Branch faced any disciplinary action, and he is concerned that DART's police force does not properly train its officers to respect First Amendment rights. OPS said Branch violated "DART's Photography Policy," which says "persons may take photographic or video images" as long as they do not "interfere with public safety activity." But Branch said she had never seen that policy. Furthermore, Adelman says, another DART policy could be interpreted as authorizing arrests of people taking pictures in the DART system. That policy says a criminal trespass charge is appropriate when a "person is on DART's property for purposes other than to utilize public transportation services."
No Supreme Court decisions directly address a photographer’s First Amendment rights. The rulings closest to that issue involve expressive speech and conduct.
“The First Amendment literally forbids the abridgment only of ‘speech,’ but we have long recognized that its protection does not end at the spoken or written word … we have acknowledged that conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.’
“In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Texas v. Johnson (1989)
Six years later, the Supreme Court reiterated, “To achieve First Amendment protection, a plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed.” Hurley v. Irish-American Gay, Lesbian & Bisexual Group (1995)
So speech or conduct (taking photographs) that satisfies both of the elements above is allowed and protected in the “public forum.” Using this guide, we can look to the courts and find one type of photography that is not protected by the First Amendment: private recreational photography that is for one’s own personal use.
What have the courts said about communicative photography?
What, then, is the level of protection given to “communicative” photography?
As Judge Preska wrote in Porat, “Communicative photography is well-protected by the First Amendment.” The following rulings support that assertion:
In 2006, a federal district court in New Jersey decided the case of Pomykacz v. Borough of West Wildwood. Maureen Pomykacz was a self-described “citizen activist” who expressed concern that a suspected romance between the town’s mayor and a police officer were leading to nepotism, conflicts of interest and preferential treatment. These suspicions led Pomykacz to “monitor” the two, which included taking photographs. Eventually she was arrested on charges of stalking, though the charges were downgraded to harassment. Pomykacz ended up filing suit asserting, among other things, that she was arrested in violation of the First Amendment retaliation for her monitoring activities.
U.S. District Judge Joseph E. Irenas noted, “Pomykacz has put forth sufficient evidence that she was a concerned citizen who at times spoke her mind to Borough officials and other citizens about her concerns regarding the official conduct of the police department and the mayor.” The judge went on to conclude that her activities were part of Pomykacz’s political activism and thus protected by the First Amendment.
In California, a group of animal activists sought an injunction in 2007 giving them access to an entrance ramp to the Oracle Arena portion of the Oakland Coliseum in order to observe, photograph and videotape circus animals and how they were treated. Management for the Oakland Coliseum/Arena, which is publicly owned, had recently enacted a policy allowing only people who had purchased a ticket to the particular event to be on the entrance ramp. The activists argued that their rights under both the First Amendment and Article I, Section 2(a) of the California Constitution were being violated.
U.S. Magistrate Judge Edward M. Chen agreed with the activists, saying that they were engaging in constitutionally protected speech because they were educating the public and the public was interested. Cuviello v. City of Oakland(2007) The 9th Circuitaffirmed Chen’s ruling in 2011.
On Aug. 1, 1989, Beau Lambert was in the “loop” area of downtown Des Moines, Iowa with his video camera. He said he intended to sell anything newsworthy that he might happen to record. As fate would have it, he recorded a street fight that proved fatal to one of the participants. The tape was taken either by or given to the police (accounts vary) and not returned. Lambert ended up filing suit in federal court claiming, among other things, that his First Amendment right to “gather and broadcast news” was violated.
Chief U.S. District Judge Harold D. Vietor agreed with Lambert. Taking the tape “clearly violated his First Amendment right to display the tape and disseminate it in any way he wishes” the judge wrote, adding, “It is not just news organizations … who have First Amendment rights to make and display videotapes of events — all of us, including Lambert, have that right.” Lambert v. Polk County(1989)
On public versus non-public spaces
As noted above, the Supreme Court has not heard a case directly concerning photographer’s rights. However, as in the previous section, other decisions by the Court can be used to help establish where a photographer can take pictures.
The first level was the traditional public forum: “In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed.” Traditional public forums include streets, sidewalks and parks. In a traditional public forum, speech receives the most protection and the government generally must allow nearly all types of speech. For the government to enforce a content-based exclusion in a traditional public forum, it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.
The second level was limited or designated public forums. This is defined as “public property which the state has opened for use by the public as a place for expressive activity.” The government is not required to “open” property, nor is it required to keep the designated property open indefinitely, but as long as it does so, it “is bound by the same standards as apply in a traditional public forum.” Reasonable time, place and manner regulations are permissible and any content-based exclusion must be narrowly drawn to serve a compelling state interest.
The final level was the non-public forum. This is public property which is not by tradition or designation a forum for public communication. The Supreme Court has “recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government. In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes … as long as the regulation on speech is reasonable” and viewpoint neutral, according to the Perry opinion.
So, from the Perry ruling we can say that, just as we are all able to use public spaces (the traditional and limited public forums), photographers are able to take pictures in public spaces.
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