National Press Club

Panel outlines photographers' First Amendment rights

October 29, 2013 | By Jim McCaskill | jamesmccaskill@gmail.com

Award winning photojournalist, Mannie Garcia participates on a panel discussing our right to photograph and record in public at a meeting sponsored by the National Press Club's Photography Committee and The National Press Photographers Association in support of Free Speech Week, October 23, 2013.

Award winning photojournalist, Mannie Garcia participates on a panel discussing our right to photograph and record in public at a meeting sponsored by the National Press Club's Photography Committee and The National Press Photographers Association in support of Free Speech Week, October 23, 2013.

Photo/Image: Noel St. John

Photo journalists are fully protected by the First Amendment, but their rights are not absolute, photographers, police and lawyers explained Oct. 23 at a National Press Club panel sponsored by the Club's Photography Committee and the National Press Photographers Association as party of Free Speech Week.

"Photography is not a crime," moderator Mickey H. Osterreicher, general counsel for the National Press Photographers Association, said.

"Photography is a First Amendment right" attorney Robert Corn-Revere, a partner with the law firm, Davis Wright Tremaine, said. Corn-Revere, who specializes in free-speech cases, said courts have ruled "gathering information is part of the news process."

Osterreicher opened the discussion with videos and still photos showing police trying to stop photographers and, in some cases, arresting them. In the aftermath, Osterreicher explained, government agencies have paid damages to photographers for wrongful arrest and denying their civil rights.

Panelist Timothy D. Mygatt, a special counsel at the Justice Department's Civil Rights Division, said many police departments don’t have policies for handling photographers or those shooting video, and they struggle with how to respond.

"it’s crucial that police policies ensure the Constitution is upheld," Mygatt said.

Mannie Garcia, award-winning photojournalist and panel member, said, photojournalists must balance rights and responsibilities.

"I have the right to record in public, but I have a responsibility as well," he said. "You need to know your responsibility to yourself and colleagues. Don't interfere with police investigations. Step back, give them their space."

Montgomery County police arrested Garcia on June 16, 2011 as he was taking photos of two policemen arresting two young men. Garcia said he was about 150 feet away and moving. He told the police officer who stopped him that he was a member of the media, but the office placed him under arrest.

Garcia was found not guilty of all of the charges, and he’s now suing Montgomery County in federal court, arguing that county police violated his rights under the First, Fourth, and Fourteenth Amendments. Corn-Revere, who’s representing Garcia, said the U.S. Justice Department has filed a Statement of Interest in this case.

"Rights are not absolute," Corn-Revere said. "The First Amendment does not mean unfettered activities. The press can be subject to reasonable regulation such as in cases of crowd control. But, there are limits to regulation.”

The broadest First Amendment rights apply on public streets, parks and other areas defined by the courts as "public forums," Corn-Revere said. In such public forums, authorities can only impose restrictions related to time, place or manner. Other areas, such as military bases or other secure facilities, may have different rules.

Panel member Gwendolyn Crump, director of the communications office for the D.C. Metropolitan Police Department, said that in July 2012, D.C Police Chief Cathy Lanier issued a policy informing police officers that photographers may take pictures at crime scenes.

Sometimes a police officer will tell a photographer that he or she is violating the officer’s “right to privacy."

Crump said D.C. metro police are told they have no expectation of privacy on a public street.

Lanier "is determined that the Constitution be upheld,” Crump said.

Corn-Revere said police in Washington "lead the nation" on press freedom policies.

"There are great variations between police departments," Mygatt said. "Many small police forces do not have legal advisers."

The International Association of Chiefs of Police has published a model policy on photographers' rights that it encourages police departments nationwide to adopt.

"We have studied this model policy and believe it is the right way to approach this," Mygatt said.

Panel member J. David Ake, assistant Washington bureau chief for photography at The Associated Press,said he recalls a time when police welcomed photographers to crime scenes.

"I don't know when photographers became the enemy of police," Ake said. "At one time they liked being photographed. They liked being photographed carrying a child out of a burning building. They liked having their picture taken rescuing a cat. Great PR, law enforcement doing their job."

Crump said the Rodney King incident in 1991, when a bystander captured video of Los Angeles police beating King after a car chase, changed how police felt about being photographed. The video, shown worldwide, sparked riots.

"Rodney King was the watershed event," Mygatt said. The incident "changed people's minds about the police. It is not just the public with cameras. The police have cameras also in police cars, body cameras. It is going to be happening all over the place.”