Great piece on Nppa.org about ethical issues related to photography this week as the bin Laden story evolves. Big decisions about gruesome images and staged photo ops.
Read about it here:
http://www.nppa.org/news_and_events/news/2011/05/binladen.html
I have been following an exciting bill in the Connecticut legislature that for explicitly takes steps to protect photographers rights to make pictures.
In the face of recent efforts by other states to arrest photographers and charge them with violating wiretapping laws Connecticut’s S.B. No. 1206 is refreshing.
Contrary to some reports, the bill does not give photographers the right to take pictures in public- that right already exists. What the bill does is give photographers a right to sue police who interfere with their right to photograph. In many cases, you can only bring a lawsuit if the suit is authorized. A violation of a civil right is generally an appropriate grounds for suit, and in fact many photographers across the country have received settlements from police departments after being arrested unjustly. However, having an explicit cause of action will make it easier for photographers to bring suit.
In my opinion, it is not the possibility of a lawsuit that would make this bill favorable. Sure it is nice to get something for your trouble. But what matters here is the pressure that this would put on police departments to make sure that their officers respect the First Amendment and leave photographers alone.
The bill is short enough that I can post the entire version here:
Any peace officer, as defined in section 53a-3 of the general statutes, who interferes with a person taking a photographic or digital still or video image of such peace officer or another peace officer acting in the performance of such officer’s duties shall be liable to such person in an action at law, suit in equity or other proper proceeding for redress, provided such person, while taking such image, did not obstruct or hinder any peace officer in the performance of such officer’s duties.
According to the Hartford Courant an amendment has been added that exempts officers “if the officer had a reasonable belief it would interfere with an investigation, violate the privacy of a victim or impact the public’s safety.” I’m hoping to get a copy of the amended text- it is not currently posted on the General Assembly website. An amendment like this could take away the teeth of the law or even make things worse if poorly written.
I have for you today some long overdue commentary on last year’s case of Hollingsworth v. Perry, 130 S. Ct. 705 (2010), the ruling by the Supreme Court of the United States regarding cameras in federal courts. As the Court blocked an attempt by a federal court in California to broadcast the trial to other courthouses throughout the country, it was seen as a blow to the efforts to bring cameras into federal courts. It was indeed a loss, but there were many positive elements to it.
First, the Court explicitly said that it was not ruling on the issue of cameras in the courtroom, rather the ruling was limited to the fact that the comment period for changing the local rules was not long enough (thus avoiding the constitutional question). This means it lives to fight another day.
Second, the decision was 5 to 4, which means that 4 of the justices would have allowed it to proceed, and if only one of the justices in the majority truly voted based on the rule-making violation, we are in good shape.
Third, I noticed something very interesting, and I wonder if anyone else has picked up on it. The Court explicitly and implicitly approved of, the presence of the audio-visual equipment itself in the courtroom when it stated, “[w]e therefore stay the court’s January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses.” Hollingsworth v. Perry, 130 S. Ct. 705, 709 (2010).
In fact, the Court cited the existing rules of the Ninth Circuit, (pre-experiment) which allow the “Electronic transmittal of courtroom proceedings and presentation of evidence within the confines of the courthouse” Id at 710-711.
The majority also discusses approvingly the limited broadcast of the Oklahoma City Bombing case, without mention of the impact of the cameras in the actual courtroom, as well as the statute: 42 USCS § 10608, which opens the door to closed-circuit viewing of criminal trials. Of course closed- circuit viewing of trials cannot occur without a video camera.
In the temporary stay that it issued two days earlier, the Court explicitly referred to transmissions within the same courthouse when it stayed the broadcast “except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held.” Hollingsworth v. Perry, 175 L. Ed. 2d 878 (2010).
This tells us that the issue for the Supreme Court is no longer the presence of the technology as it was 45 years ago in Estes v. Texas. It is the impact of what will happen outside the courtroom. The great thing about limiting the issue to the impact of the broadcast is that there is little teeth in that argument. The Court has been loath to restrict the publication of truthful information obtained in the courthouse, and has outright rejected many efforts to limit publication of courthouse records and testimony, even when extremely sensitive facts were at stake.
A photojournalist for La Prensa, in Monclova was kidnapped and murdered in Monterrey last week, according to the Committee to Protect Journalists. The organization reports that Luis Emanuel Ruiz Carrillo was abducted on Thursday night along with two others, and found dead with a gunshot wound to the head on Friday.
As the world is focused on the uprisings in the Arab World, let’s not forget that one of the most dangerous places for journalists is next door, for some of us, mere hours away. Our brave brethren in Mexico deserve our respect and support.
According to the Associated Press, some of Mexico’s largest news outlets recently agreed to a set of drug-war reporting guidelines, agreeing to ignore propaganda messages from drug gangs, which are sometimes left near the bodies of victims. In my opinion, the U.S. media should follow suit.
One of the things that I have been working on since finishing law school is supporting the effort to get Anti-SLAPP legislation passed in Texas.
On Monday the Texas House Committee on Judiciary & Civil Jurisprudence held a hearing on The Citizen Participation Act, a law designed to protect Texans from frivolous lawsuits that target their First Amendment rights. The Citizen Participation Act is a bi-partisan effort at aimed at supporting the rights of all Texans affected by frivolous SLAPP suits.
Every Texan, from a rural housewife, to an Austin taxicab driver, to the Better Business Bureau, is a potential target of a SLAPP suit. The Internet age has created a more permanent and searchable record of public participation as citizen participation in democracy grows through self-publishing, citizen journalism and other forms of speech. Unfortunately, abuses of the legal system, aimed at silencing these citizens, have also grown. These lawsuits, called Strategic Lawsuits Against Public Participation or “SLAPP” suits. Twenty-seven states and D.C. have laws similar to the Texas Citizen Participation Act.
The Act is comprised of House Bill 2973, sponsored by Chairman Todd Hunter, R-Corpus Christi, and Senate Bill 1565, co-sponsored by Sen. Rodney Ellis, D-Houston and Sen. Kevin Eltife, R-Tyler.
Author Carla Main told the committee that after she wrote a book about eminent domain, a real estate developer filed half a dozen lawsuits, naming her, her publisher, the person who wrote a blurb on the back of the book and a Texas newspaper that wrote a review of the book as defendants. By including the newspaper, The Galveston County Daily News, in the suit, the developer prevented Main from removing the case to Federal Court “where we could have moved to dismiss the case immediately.”
The bill “creates a mechanism to get rid of meritless lawsuits at the outset of the proceeding and it provides for a means to help alleviate some of the burden on our court system,” said Laura Prather, a First Amendment attorney from Austin.
Shane Fitzgerald, Editor of the Corpus Christi Caller-Times told the committee how just last week the newspaper was threatened with a lawsuit for publishing a photo taken on a public beach during Spring Break. Refineries and other industries have threatened to sue newspapers over the publication of public records and safety reports from state agencies. Fitzgerald stated that the paper is threatened with such lawsuits several times a month. The effect of these suits is increased costs to the newspaper and fewer resources available for reporting.
Also testifying was Janet Ahmad, of San Antonio, and the president of Home Owners for Better Building. Ahmad shared details of how she was sued for racketeering by KB homes because she organized protests of the builder.
Author’s Note: This is a cross- post from my NPPA Advocacy blog.
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.
The New York Times is broadcasting the State of the Union on the front page of its website as I write this. It is a lovely thing to watch, and it is a clear example of how newspapers have changed- in what they can do and how they can deliver the news.
If the Wisconsin Interscholastic Athletic Association (WIAA) was in charge of the State of the Union, the New York Times would not be web-casting the State of the Union, in it’s entirety. Instead they would be limited to two minutes worth of highlight footage, with no live blogging allowed. Sound absurd? That is exactly what WIAA claims it can do with its high school championship games. A federal judge agreed with them and the case is now under appeal. WIAA is a state actor, and if you say that WIAA can restrict coverage of its events, where is the line drawn?
This week, the broadcast of the Elena Kagan confirmation hearings provided a stark contrast to the dramatic events actually inside the Court on Monday. What came of it is one of the most elegant arguments for cameras in the Supreme Court that I have ever read.
Check out the article here.
Two important pieces of legal news for photographers today.
U.S. v. Stevens
The Supreme Court today overturned a law that made photographs of animal cruelty illegal. The defendant, Stevens, was the first to be convicted under a federal law that banned the creation, sale, or possession of a depiction of animal cruelty.
Much like child pornography laws, the law was designed to target the market for videos of animal cruelty, because it is often difficult to determine the person who committed the underlying cruel acts. Designed to allow law enforcement to go after “crush” videos, which appeal to a disgusting fetish for the crushing of small animals, the law in this case was applied to a video of dog fights.
The problem with the law, as evidenced by the fact that it was used against a dog fight video (not that I am any fan of that either), was that it was way too broad, and could potentially impact journalists, as well as others exercising their First Amendment rights. There was an exception for any depiction that has “serious journalistic value,” but the term “serious” excluded too much, and there was no exception for entertainment. The NPPA joined the Reporters Committee for Freedom of the Press in filing an amicus brief.
The Supreme Court ruled that the law explicitly punished expression based on the content. Although speech restrictions based on content are allowed in a few exceptions, namely, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct, and some specific narrowly tailored areas, this was not one of them, and the court declined to create a new category.
In attempting to bring videos of animal cruelty to the level of child pornography, the government proposed the following test for adding new areas of exception to the First Amendment : “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”
Justice Roberts responded, “As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.” The court declined to carve out a new exception to the First Amendment for animal cruelty.
Finding that the law was far too much of a limitation on the First Amendment, Roberts said, “We read §48 to create a criminal prohibition of alarming breadth.”
There are some great lines in the opinion, including, “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”
Animal rights fans, take heart. The court did “not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.”
You can read the entire opinion, and the dissent, here. There is also a good analysis of the ruling on the SCOTUS blog.
Ken Light v. Current TV
Also important for photographers is the ongoing case of Ken Light, a San Francisco photographer who took Current TV to small claims court for “unfair competition,” after they violated his copyright. Light originally won the case, but Current TV appealed it and the court threw the case out. The reason- it was basically a copyright violation and small claims courts do not have jurisdiction over copyright, only federal court does.
I am aware of some cases where a copyright violation was successfully taken to small claims court as a breach of contract or failure to pay an invoice, but it is always a risk as the federal courts have exclusive jurisdiction over copyright claims.
There is a wonderful story about the case, and the legal history of “in-line linking” on the NPPA website. I recommend it.
UPDATE: The New York Times calls the ruling a “major and muscular First Amendment ruling“
One of the dangers of “official” photographers, is when they are used as a replacement for admitting the media.
The media doesn’t like this, but for years, there was not much in the way of response.
Things are changing. More and more, I have seen media companies refusing to run “handout” photos when they are offered as a replacement for media access.
Recently, the media was kept out of a meeting between President Obama and the Dalai Lama. Response was strong.
The Associated Press declined to distribute the handout photo, instead offering the following Photo Advisory:
AP Photo Advisory: The AP will not be distributing an official White House photograph of today’s meeting between President Obama and the Dalai Lama. The AP declines to accept or use handout photos when we feel access would have been possible by the media, either as a group or through a pool photo arrangement.
The New York Times and the Washington Post also stated that they would not publish the hand-out photos.
The impact of a media blackout used to be more significant. But since the Obama White House has it’s own photo distribution system (via a Flikr Photostream) it doesn’t have to rely on the AP, or even newspapers, to get its images across.
There are several good sources for this story:
Associate Press release about the Dalai Lama and Obama meeting.
Washington Times article about the Dalai Lama handout photo.
Columbia Journalism Review article on the handouts trend.
White House Flikr photo stream.
White House News Photographers Association position on handout photos.
NPPA Photojournalism News Legal News from ABA
Photo Blawg 
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