Photography & the First Amendment

Sunday, January 1, 2012

You would think that if you are in a public space and you can see something — an object, a person, an incident — then you could also photograph or film it. The reality is not that simple.

Just in the last few years, some interesting stories have cropped up in the news concerning photographers. A photographer in New York was arrested for videotaping a protest in a public plaza. A photographer for a newspaper in California was arrested while taking pictures of an accident scene on a public highway. Along with these examples are numerous other occasions in which photographers were temporarily detained and questioned for taking pictures of police activity or even buildings.

Such incidents lead to some interesting questions regarding the rights of photographers. What rights do photographers actually have? Can limitations be placed on them? Are they allowed to take pictures of anything that is in public view? Does it matter if the one taking pictures is a journalist or a private citizen?

Photographs as speech

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.

In 2003, Ram Z. Porat was walking along a public street in New York City when he stopped to take pictures of a group of residential buildings known as Lincoln Towers. Porat was approached by a Lincoln Towers security guard and was told that management policy did not permit nonresidents to take photographs of the buildings. Porat continued to take pictures and went on to enter a public courtyard on the premises. He was asked by the guard why he was taking photos, to which Porat replied that “he was taking pictures for aesthetic and recreational reasons.” When the guard asked to see the pictures and some form of identification, Porat refused. Another security guard approached and told Porat he was under civilian arrest. Police eventually issued Porat an appearance ticket for trespassing.

Porat filed suit in federal district court arguing, among other things, that the guards and police officers “violated his First Amendment rights by issuing him an appearance ticket for trespass in retaliation for his exercise of conduct protected under the First Amendment.” But U.S. District Judge Lorretta Preska explained that to prevail in a First Amendment retaliation claim, one must prove that “he has an interest protected by the First Amendment.” The court found that Porat could not satisfy that requirement.

Preska wrote that “communicative photography is well-protected by the First Amendment.” However, according to his complaint, Porat denied “any communicative or other interest protected by the First Amendment … Plaintiff was taking photographs of the construction taking place on the Lincoln Towers for his own personal use.” Preska then examined “whether the First Amendment protects purely private recreational, non-communicative photography.”

The judge looked to a number of U.S. Supreme Court cases, including Hurley, and pointed out that the high court has said “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.”

Preska found that Porat could not satisfy either of these elements because “he effectively disclaim[ed] any communicative property of his photography as well as any intended audience by describing himself as a ‘photo hobbyist,’ and alleg[ed] that the photographs were only intended for ‘aesthetic and recreational’ purposes.” Porat v. Lincoln Towers Community Association. (2005)

In 2010, a federal court in Indiana found that there is no First Amendment right to videotape a school choir performance. In 2007, William Larsen was prohibited from videotaping the performance, in which his daughter was singing, because of the school’s no-videography rule for that particular event. He later filed a lawsuit alleging, among other things, that the ban violated his First Amendment rights.

The judge in this case, U.S. Magistrate Judge Roger B. Cosbey, cited Supreme Court cases, as well as the Porat case, and said that taking photographs or videos without a communicative or expressive purpose is not protected by the First Amendment. “The First Amendment is not implicated because a person uses a camera, but rather, when that camera is used as a means of engaging in protected expressive conduct or, less commonly, to gather information about what public officials do on public property” Cosbey wrote. “Larsen does not argue that he was attempting to express or communicate an idea through his proposed videography of the show choir invitational or that he was gathering information about what public officials do on public property. Rather, he stated that he wanted to videotape the performance simply for his personal archival purposes. … The First Amendment, however, does not protect purely private recreational, non-communicative photography.” Larsen v. Fort Wayne Police Dept. (2010)

Thus, the lower courts have found that non-communicative recreational photography is not protected by the First Amendment. 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 Circuit affirmed 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)

Time, place, manner restrictions: Accident and crime scenes

Although communicative photography is well protected, one thing must always be remembered: time, place, and manner restrictions may be placed on any “speaker,” or person behind the camera.

The Supreme Court has said “even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism (1989) An example of such restrictions would involve access to crime and accident scenes.

Even though crime and accident scenes can be considered matters of public interest, the Supreme Court in Branzburg v. Hayes (1978) said, “Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.” This does not mean that accident scenes are completely off limits. It does mean that a photographer does not have a constitutional right to be there.

For example, in 2009 a federal judge in California heard the case Chavez v. City of Oakland involving a photographer taking pictures of an accident scene on an interstate. Raymundo Chavez, a staff photographer for The Oakland Tribune, was told he was under arrest after he continued to take pictures of an accident scene on Interstate 880. Traffic in all northbound lanes of the highway, the direction Chavez was traveling, had come to a halt. Seeing the accident as a newsworthy event, Chavez placed the press parking pass he had been issued by the Oakland Police Department in the windshield of his car. He then got out of his car to go take pictures, leaving it in one of the blocked lanes. He eventually encountered an Oakland police officer identified only as K. Reynolds, who told Chavez to stop taking pictures, return to his car and leave. Chavez responded that as a member of the news media, he had a right to cover accident scenes. Reynolds retorted that “he didn’t care, that [Chavez] had to go back to [his] car and leave because [he] didn’t ‘need to take these kind of pictures.’” After about 30 minutes and two further warnings, Chavez was detained and told he was under arrest. About 30 minutes later he was released with a warning. Chavez brought suit, claiming among other things that his First Amendment right “not to be detained or arrested to prevent him from taking photographs of a newsworthy event” was violated.

U.S. District Judge Charles R. Breyer cited Branzburg v. Hayes and stated, “The press has no First Amendment right to access accident or crime scenes if the general public is excluded” and that there was no evidence to suggest that the general public was allowed access to the site. Breyer emphasized the “place” aspect of this case, saying that the public, including the press, not only does not have access to accident scenes but also “does not have a First Amendment right to take photographs while standing in the middle of the freeway.”

The 9th Circuit, in an unpublished opinion, affirmed the district court’s decision.

Photography/videography and police activity

Photographing or more commonly videotaping police activity is one of the most contentious areas of photographer/videographer rights. When it comes to filming police activity, the federal courts are not in agreement as to whether there is even a right to do it. In a case about prisoner punishment, the U.S. Supreme Court said, “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right … in the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer (2002)

Two U.S. Circuit courts, the 1st and the 11th, say that there is a right to photograph/videotape police activity. The 9th Circuit provides some protection if police activity is considered a “matter of public interest.” Courts in the 3rd, 4th and 5th Circuits have said that the right to videotape the police has not conclusively been established. Courts in the remaining circuits have not ruled directly on the issue.

Circuits where courts have ruled that the right is established

1st Circuit

On Oct. 7, 2007, Simon Glik was walking past the Boston Commons when he noticed three police officers arresting someone. He continued to watch the arrest but then became concerned that the officers were using excessive force. So he moved to approximately 10 feet away and used his cell phone to record video footage of the arrest. After the arrest, an officer approached Glik and asked if he had recorded the incident and if the cell phone recorded audio. When Glik answered yes to both questions, the officer arrested him for, among other things, unlawful audio recording in violation of the Massachusetts’ wiretap statute. Eventually all charges against Glik were dismissed. He later filed a federal civil rights lawsuit against the officers and the city alledging a violation of his First and Fourth Amendment rights. In response, the defendants filed a motion to dismiss based partially on qualified immunity “because it is not well-settled that [Glik] had a constitutional right to record the officers.”

The U.S. District Court focused on the qualified-immunity issue and denied the motion to dismiss the case, saying that “in the First Circuit … this First Amendment right publicly to record the activities of police officers on public business is established.” The defendants then filed an appeal to the 1st Circuit.

In August 2011, the 1st Circuit sided with Glik, agreeing with the lower court. Judge Kermit Lipez wrote for the 1st Circuit panel, “The First Amendment issue here is … is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.” Lipez pointed out in Glik v. Cunniffe that the First Amendment “encompasses a range of conduct relating to the gathering and dissemination of information” and that this protection covers all individuals not just members of the press. He added that “the filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within” a persons right to gather information. “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs,” he wrote. Lipez also wrote that the right to film government officials, including law enforcement officers, was clearly established in the 1st Circuit at the time of Glik’s arrest.

11th Circuit

In a 2000 ruling in a Georgia case, Smith v. City of Cumming, the 11th Circuit agreed with the plaintiffs, James and Barbara Smith, that “they had a First Amendment right, subject to reasonable time, manner, place restrictions, to photograph or videotape police conduct. The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Unfortunately, the only details the court provided in its ruling were that “Mr. Smith had been prevented from videotaping police actions.” This lack of information regarding what exactly happened makes it difficult to determine which First Amendment right was protected. Further, even though the court found that the Smiths had a right to videotape the police, the court ruled that the couple did not show that the police actions violated that right. This lack of information makes this case of little use to those arguing for a First Amendment right to photograph or videotape police activities.

Courts offering some protection

9th Circuit

In its 1995 opinion in Fordyce v. City of Seattle, the 9th Circuit stated that there is a First Amendment right to “film matters of public interest.”

Jerry Fordyce was part of a Seattle protest march and had volunteered to videotape the event, including the activities of police assigned to work the event. Fordyce was arrested when he attempted to videotape some bystanders on the sidewalk against their wishes. He was charged with violating a Washington state privacy statute that forbids the recording of private conversations without the consent of all participants. The thrust of the First Amendment case centered on the privacy statute. Fordyce’s right to record events, including police activities, was never a main issue. The issue was addressed because Fordyce alleged, among other things, that the police had interfered with his First Amendment right to gather news.

In the initial suit, the district court found that “gathering and dissemination of news from public sources is fully protected by the First Amendment. Cox Broadcasting Corp. v. Cohn (1975) The rights of having access to public events and communicating news relating to them are enjoyed by all persons, not just the mass media. Branzburg, (1972).” On appeal, the 9th Circuit agreed that there is a First Amendment right to film matters of public interest. However, Fordyce ended up losing the case on the privacy issue.

The question of whether a person has the right to photograph or videotape police activities in the 9th Circuit has not been directly addressed and, thus, has not been fully answered.

Circuits where the right is not established

First, a word about the legal principle known as qualified immunity, as it figures prominently in the circuits where a right to photograph police activity is not clearly established.

If a right is not clearly established then police and other government officials are protected by qualified immunity. In 1986, the Supreme Court said in Malley v. Briggs: “The qualified immunity defense ‘provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”’

In 2009, the high court wrote more about the principle in Pearson v. Callahan (2009): “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”

The justices added: “Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

Once the qualified-immunity defense is raised, it is up to the plaintiff to overcome the defense. A two-step process is used to determine if qualified immunity applies in a particular case. Judges are allowed to use their discretion in deciding which of the two prongs of the qualified-immunity analysis should be addressed first. The high court wrote in Pearson: “A court must decide whether the facts that a plaintiff has alleged make out a violation of a constitutional right” and “the court must decide whether the right at issue was clearly established at the time of defendant’s alleged misconduct.”

The 4th Circuit has even included an additional step, “If it is determined that the specific right was clearly established…, the court may then consider whether a reasonable person in the official’s position would have known that his conduct violated that right.” Szymecki v. Houck (1987)

As will be seen, qualified immunity plays an important role in court cases involving the photographing of police.

3rd Circuit

Courts in the 3rd Circuit have ruled differently on the issue of videotaping the activities of the police. For instance, in 2005, a U.S. District Court in Pennsylvania ruled in Robinson v. Fetterman that videotaping police activity is constitutionally protected.

The plaintiff, Allen Robinson, was concerned that Pennsylvania state troopers were conducting truck inspections unsafely on a public highway in Chester County in 2000. Robinson decided to record their activity, filming the officers from an adjacent open field 20 to 30 feet from the inspection site. At no time did he interfere with the troopers’ activities.

Three of the troopers performing the inspections approached Robinson and asked him to stop videotaping them and leave the area. When Robinson refused, he was arrested and charged under Pennsylvania’s harassment statute. He was found guilty and appealed to the county Common Pleas Court, where the charge was dismissed. Robinson then sued the troopers in federal court alleging, among other things, a violation of his free-speech rights under the First Amendment.

U.S. District Judge Harvey Bartle noted that Robinson had alleged that his “right to videotape [state troopers] and thus speak out on issues of public concern” was violated. Bartle wrote: “The activities of the police, like those of other public officials, are subject to public scrutiny. … [Robinson] also has a First Amendment right to express his concern about the safety of the truck inspections … whether his expression takes the form of speech or conduct.” The opinion went on to say, “Videotaping is a legitimate means of gathering information for public dissemination and … there can be no doubt that the free speech clause of the Constitution protected [the plaintiff] as he videotaped the defendants.”

Bartle added that “no reasonable trooper could have believed that Robinson’s videotaping … constituted harassment.”

However, in March 2010, another federal district court in Pennsylvania found that the right to record police officers was not clearly established.

Elijah David Matheny and a friend went to a student housing complex on the campus of the University of Pittsburgh on June 10, 2008, in search of items discarded by the departing students at the end of the semester. Several university police officers approached them and asked for identification. Matheny’s friend told police who she was but had no identification on her. The police could find no record of her and placed her in handcuffs until they could verify her ID. Matheny recorded the conversation, both video and audio, with his cell phone. One of the officers asked if he had recorded the incident and whether it was video and audio. After he responded that the cell phone recorded both, Matheny was arrested for violating Pennsylvania’s Wiretap and Electronic Surveillance Control Act.

Matheny brought suit against one of the officers and the Allegheny County district attorney. He asserted three claims, one of which was “a claim for retaliation for the exercise of his rights under the First Amendment.” The officer and the DA both filed motions to dismiss.

U.S. Magistrate Judge Cathy Bissoon noted in Matheny v. County of Allegheny that “neither the United States Supreme Court nor the Third Circuit has held that individuals have an unfettered First Amendment right to record police officers in the performance of their official duties.” The judge concluded that “the limited case law on the subject simply does not provide sufficient guidelines or define the contours of the right in such a manner that reasonable officials would understand that their actions … would impinge upon or violate [a] purported First Amendment right to record the incident.” Thus the court granted the motions to dismiss the case “because the First Amendment right to record police conduct is not clearly established.”

When a similar case, Kelly v. Borough of Carlisle, reached the 3rd Circuit, that court also found that the right was not clearly established.

In this case, Brian Kelley was arrested during a traffic stop for recording Borough of Carlisle officer David Rogers. Kelly was a passenger in the stopped vehicle and started recording the police officer with a small, hand-held video camera “after [he] saw how [the officer] was acting.” The officer noticed Kelly was recording him, which Rogers said he believed was a violation of the Pennsylvania Wiretap Act. Rogers ordered Kelly to turn over the camera and Kelly complied. Rogers then returned to his police car and called Assistant District Attorney John Birbeck to confirm that Kelly had violated the act. Birbeck agreed and told Rogers that it was appropriate to make an arrest. The charges against Kelly were eventually dropped, but he sued Rogers and the Borough of Carlisle anyway, alleging, among other things, that his First Amendment rights were violated.

U.S. District Judge Yvette Kane granted summary judgment to Rogers based on qualified immunity, finding “that it would not have been clear to a reasonable officer … that arresting plaintiff Kelly on the basis of the Wiretap Act would violate the plaintiff’s First Amendment rights.” Kane said that (1) it was unclear whether Kelly had a right to videotape the police stop because the 3rd Circuit had only stated “at most … there is some First Amendment protection for videography that has a communicative or expressive purpose” and (2) even if the right to videotape had been clearly established, “a reasonable officer in Defendant Rogers’ position would nonetheless have believed his actions in arresting Plaintiff pursuant to the Wiretap Act were constitutional.”

On appeal, the 3rd Circuit concluded in October 2010 that “there was insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment.” Because this right was not clearly established, the court ruled that Rogers was entitled to qualified immunity and ruled in his favor.

4th Circuit

On Dec. 16, 2008, a federal judge in Virginia ruled in a case brought by Deborah Szymecki against Norfolk Sheriff’s Deputy Ashley Houck. Szymecki claimed that Houck had violated her First Amendment rights when she attempted to videotape the arrest of her husband with her cell phone and was ordered by Houck to “put it away or go to jail!” Houck then ordered Szymecki to leave the grounds of the Norfolk Harborfest Festival, where the arrest took place, and instructed a Norfolk police officer to arrest her for trespassing if she tried to return. Szymecki sued, alleging that Houck violated her rights by “prohibiting her from filming an event in a public place that she wished to recount to others and possibly to the press.” Houck filed for summary judgment, asking the case be dismissed on qualified-immunity grounds.

Senior U.S. District Judge Henry Coke Morgan Jr. applied the first part of the qualified-immunity analysis and held “that the First Amendment protects the video recording of the actions of police officers” but noted that the “protection is subject to reasonable time, place and manner restrictions.” Morgan also wrote that, based on the evidence provided by Szymecki, “the court assumes without ruling, and for the purposes of this motion only, that Deputy Houck’s actions were in fact constitutionally violative.”

However, when Morgan moved on to the second part of the analysis, he found that the right to videotape police was not clearly established. “In determining whether a right was clearly established at the time of the claimed violation, courts in this circuit need not look beyond the decisions of the Supreme Court, this court of appeals, and the highest court of the state in which the case arose.”

The judge went on to say that “if a right is recognized in some other circuit, but not this one, an official will ordinarily retain the immunity defense.” In the end, Szymecki was not able to cite a case from any courts in the 4th Circuit that acknowledged the existence of this right.

The case was appealed to the 4th U.S. Circuit Court of Appeals, which agreed in Szymecki v. Houck (2009) with the district court, affirming the dismissal of the case on the basis of qualified immunity.

5th Circuit

Although the 5th Circuit has not ruled on whether there is a right to videotape police officers, a federal judge in Louisiana considered the matter in 2009. U.S. District Judge Helen G. Berrigan noted “the lack of guidance” from the 5th Circuit in her ruling in Gravolet v. Tassin, finding no clearly established right to videotape police officers. There was no direct allegation of a First Amendment violation by the plaintiff, Herman Gravolet, but he did argue that he had “a constitutional right to videotape police officers on duty.”

Gravolet was arrested in 2007 on a charge of driving while intoxicated. According to court documents, Gravolet admitted that he was “incensed” by the conduct of the officers involved in his arrest and wanted to “document a pattern of abusive behavior which would help in [his] DWI defense.” To that end, he decided to videotape Jennifer Daigle Tassin, one of the arresting officers, while she was on duty.

Officer Tassin noticed Gravolet’s presence at various times while she was on duty and said she became concerned and fearful, in large part because Gravolet was angry and violent during his arrest. He had also asked specific questions about Tassin at the time of his arrest. She voiced her concerns to her superiors, who, after consulting a state statute, gave instructions to arrest Gravolet for stalking if he continued to follow Tassin. Gravolet did continue and was arrested. He then filed suit. Tassin asked the court to dismiss the suit on the basis of qualified immunity.

Gravolet did not allege a First Amendment violation of his rights, but did mention a constitutional right to videotape a police officer on duty. Judge Berrigan addressed this issue, writing, “The Court need not address the attendant issue whether the plaintiff was using his videotape in a manner so as to threaten Tassin, as opposed to a use that could be recognized under the First Amendment. Given the uncertainty in the caselaw and the lack of guidance from the Fifth Circuit, this Court is unable to find as a matter of law that there was a clearly established right to videotape police officers at the time of the arrest.” This determination helped Tassin win her motion to dismiss the case based on qualified immunity.

A motion to reconsider the case was filed by Gravolet, but was denied.

Photography and 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.

One helpful case is Perry Education Ass’n. v. Perry Local  Educators’ Ass’n., (1983). This case refined what is known as the public-forum doctrine and established a three-level hierarchy of public forums.

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.

Government buildings

Despite Perry, photographers are frequently stopped, harassed and sometimes arrested when they take pictures.

In January 2004, Jeffrey Thorns, whose hobby is photographing architectural details, snapped a few shots of a white handrail from a sidewalk in front of the Gus J. Solomon federal courthouse in Portland, Ore. As he took  his photos a security guard came out of the building telling him he could not take pictures of federal buildings. The guard, who was then joined by two others, asked for Thorns’ identification and began to perform a background check. During the background check, Thorns tried to take a picture of a sign on the Schnitzer Concert Hall across the street. He was immediately told to “Put the camera down” by one of the guards. After about 15 minutes Thorns was given his driver’s license back, let go and told that he couldn’t take pictures. It turns out the security guards were actually agents of the Federal Protective Service of Homeland Security.

A similar incident occurred in 2007 when NASA employee Walter Miller took a picture of part of an art exhibit displayed on a public sidewalk in Indianapolis. The part of the display he was photographing sat in front of a government building that houses government offices, the police department and the county courthouse. After taking the picture, Miller was stopped by officers  in two police cars that pulled up to him with their lights flashing. Officers approached Miller and asked what he was photographing. After telling them he was taking pictures of the art exhibit, the officers said, “I need to see it, for matters of homeland security. You can’t be taking pictures around here.” The officers looked through the pictures on Miller’s camera, questioned him, and then let him go.

These are just two examples of photographers being stopped and questioned for taking photos of, or near, government buildings. Taking these types of photos is not against the law. A recent settlement underscored this fact.

Antonio Musumeci was arrested in November 2009 as he videotaped a political protest in a public plaza outside of the Moynihan Federal Courthouse in Manhattan. Musumeci is a member of the Manhattan Libertarian Party and uses photography to record political speeches, among other things. In this instance he was filming Julian Heicklen, a libertarian activist who had been arrested several times for his protests in that same plaza. Musumeci was taping Heicklen as he was handing out pamphlets when a FPS agent confronted Heicklen and arrested him. Musumeci stepped back to record the arrest and was then arrested himself. He was told he was violating a federal regulation governing photography on federal property. The memory card from his camera was confiscated and, after being detained for about 20 minutes, he was issued a ticket for violating the photography regulation and released. Four months later the charge against him was dismissed.

In April 2010, Musumeci filed a lawsuit through the New York Civil Liberties Union against the Department of Homeland Security and the FPS alleging that the regulation unconstitutionally restricts non-commercial photography in outdoor areas to which the public has unrestricted access, the traditional public forum. He also alleged that the regulation was being used as an excuse to harass and arrest law-abiding photographers.

FPS released an information bulletin in August 2010 concerning “Photographing the Exterior of Federal Facilities,” the regulation under which Musumeci was arrested.  The bulletin, which applies to all federally owned or leased buildings, explicitly states that “absent reasonable suspicion or probable cause, law enforcement and security personnel … must allow individuals to photograph the exterior of federally owned or leased facilities from publicly accessible spaces.” The bulletin also provides guidance to FPS agents and Protective Security officers who encounter people taking photographs of these buildings. Officers are allowed to approach a photographer, request ID and ask why the photos are being taken; however, officers are reminded that “a photographer may not be detained unless, or until, the officer develops reasonable doubt or probable cause” of suspicious activity. Officers are also reminded that they “should not seize the camera or its contents, and must be cautious not to give such ‘orders’ to a photographer to erase the contents of a camera.”

In October 2010, Musumeci settled his suit and received $4,850. In addition, Federal Protective Services was required to provide written instructions to its officers that there are no general security regulations prohibiting photography of the outside of federal courthouses from publicly accessible spaces.

Despite this settlement, Washington, D.C., photographer Jerome Vorus, who some describe as a photography activist, was detained and questioned in February 2011 for taking pictures of the D.C. Superior Court building. Vorus, who was looking to test the new regulations handed down from the Musumeci settlement, had taken photos of various federal buildings without incident. However, when he started taking pictures of the D.C. Superior Court building, from a public sidewalk, he was approached by a court security officer who told him it was against the law to take pictures of the building. The security officer made a call to the U.S. Marshals office for assistance and two deputy marshals responded. They detained Vorus and started to question him. When Vorus protested his being detained and questioned,  the deputies called their supervisor. The supervisor told Vorus that the marshals were in the right because he was photographing a “sensitive building.”

In addition, sometime during this encounter, Vorus, “for [his] protection and the protection of the officers involved,” decided to video the exchange with his Flip video camera. According to Vorus, the deputies angrily snatched the camera from his hands and deleted the video. It does not appear that Vorus has filed a lawsuit in this incident.

Vorus’ written account of the incident is here.

Mass transit

Incidences of photographers’ being stopped are not limited to court buildings. Since 9/11 numerous cases of this type have involved mass-transit and industrial facilities.

In June 2002, Bill Madeira and a friend were standing on a bridge in South Philadelphia taking pictures of a Sunoco oil refinery. The amateur photographers had started a project to photograph industrial sites throughout the city. A police officer approached them, checked their IDs and left them as they were. But soon they were surrounded by police in four squad cars with a police helicopter hovering overhead. They were handcuffed, arrested and jailed for four hours. During the arrest they were told that it was illegal to take pictures of an oil refinery. Madeira, through the ACLU, filed a wrongful-arrest suit. The city eventually admitted the arrest was a mistake and settled with Madeira for $2,500.

In 2009, Robert Taylor was on an elevated platform waiting for a subway train in the Bronx. As the train approached, he decided to take a picture of it. Before he could board the train, however, he was approached by a police officer and was told he was not allowed to take pictures. Taylor argued that photography was permitted according to N.Y. Metro Transportation Authority rules. The officer disagreed and told Taylor to delete the photos; Taylor refused and was arrested and issued three different summonses. Although all three were dismissed, Taylor sued the city and ended up settling for $30,000.

In March 2011, blogger, photographer and activist Carlos Miller filed a lawsuit in a Florida state court against 50 State Security Service, with which Miami-Dade County contracts to provide security services and personnel at the county’s Metrorail stations. In June 2010, Miller had been told by a 50 State security guard that, according to federal law, he was forbidden from taking pictures. This incident culminated with a 50 State security supervisor’s telling Miller he was “permanently banned” from riding Metrorail.

A month later, Miller returned to the same Metrorail station with a news crew from HD Net that was working on a story about photography in public places. Miller purchased a ticket, entered the station and started filming. According to Miller’s complaint, a security guard almost immediately approached him “in an aggressive manner,” and told him he was not allowed to videotape in the station. Miller backed away from the security guard but continued to film. As he did, another guard knocked the camera out of his hands onto the floor. The guard picked up the camera, put it into his pocket, and refused to give it back. Miller took out his iPhone and continued to record the incident while repeatedly asking for the return of his camera. The guard again became aggressive and attempted to knock the iPhone from Miller’s hand. Events escalated, and Miller eventually withdrew from the Metrorail station.

(Video of incident shot by HD Net camera crew.)

In these cases, the photographs/videos were taken in a public place and should not have been considered a problem by authorities. In fact, New York’s Transit Authority, Miami-Dade County and other municipalities have rules expressly permitting photography in transit systems, the only exception being commercial photography. That type of photography is generally prohibited without express written permission because of concerns about free and safe movement of passengers.

A  photographer mentioned earlier, Jerome Vorus, was detained and had photos deleted from his camera after a run-in with officers from Homeland Security in Washington, D.C.’s Reagan National Airport in March 2010. Vorus said he knew the airport was a sensitive location, so he spoke to a media-relations representative before he started taking pictures to see whether there were any restrictions. He was told there were none. While taking his pictures, Vorus was approached twice by Transportation Security Administration officers who stopped and questioned him, but otherwise left him alone. He was approached again, this time by Homeland Security officers, who told him he could not photograph TSA checkpoints or TSA personnel. According to the TSA website, photography at screening locations is not prohibited unless the photographer is interfering with the screening process or taking photos of X-ray monitor screens.

After an extended exchange between the parties, which eventually included a Metro Airport Police officer, over whether Vorus was being detained or not, Vorus was told he would have to leave the airport. As he was leaving, he decided to take another picture of the Metro Airport officer, who then, according to Vorus, tackled him, took his camera and deleted his pictures.

Vorus filed a complaint with the airport authority over the actions of its officer. In time, he received a letter informing him that the officer had “violated departmental policy” and that “appropriate action had been taken.” No other details were provided.

The Vorus incident may have occurred because of confusion about whether photographs could be taken near TSA security checkpoints. There is some question as to whether someone could be prohibited from taking photographs in airports. In 1992, in a case concerning solicitation in an airport terminal, the U.S. Supreme Court said that airport terminals are non-public forums. In International Soc’y for Krishna Consciousness v. Lee, Chief Justice William H. Rehnquist  noted: “The decision to create a public forum must … be made by intentionally opening a nontraditional forum for public discourse” and that a public forum is not created “whenever members of the public are permitted freely to visit a place owned or operated by the Government.” Rehnquist went on to say that, “Although many airports have expanded their function beyond merely contributing to efficient air travel, few have included among their purposes the designation of a forum for solicitation and distribution activities. Thus, we think that neither by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.”

So, since airport terminals are not considered a public forum, it is possible, in theory, that photographers could be prohibited from taking pictures there.

A durable issue

The cases discussed are just some of the ones that have made it to court. There are many more examples of people being arrested, threatened with arrest or having their cameras or cell phones confiscated. Most incidents end with charges being dropped, but many are prosecuted. This problem led U.S. Rep. Edolphus “Ed” Towns, D-N.Y., to introduce House Resolution 298 in Congress July 2010. The resolution — “Expressing the sense of Congress that the videotaping or photographing of police engaged in potentially abusive activity in a public place should not be prosecuted in State or Federal courts” — was introduced, Towns said,  to help raise awareness of the issue of “innocent civilians” being arrested and “improperly prosecuted” for taking photographs and video footage in public. The resolution was referred to the House Judiciary Committee on July 26, 2010, where it died when the 111th Congress adjourned.

In January 2011, Connecticut state Sen. Martin Looney introduced Senate Bill 788 in the Connecticut General Assembly. This bill, “An Act Concerning the Right to Photograph or Videotape an Event,” not only acknowledges a right to record police activity, but also calls for statutes to be amended to allow a person to bring a civil action against any officer who has interfered with that right. The New Haven Independent reported that Looney said he proposed the bill in response to incidents in New Haven and East Haven, where several people were arrested while videotaping police. The bill was referred to the Joint Committee on Judiciary on Jan. 25, 2011.

Melanie Bengtson and Courtney Holliday contributed research to this article.

Updated April 2012