Recording in public places and your First Amendment rights

Simplicity is often elusive when it comes to legal matters, so it should be no surprise that the answers to questions related to recording video and audio in public places contain few pat answers other than “it’s complicated.” Indeed, that is because laws, regulations and rules in these matters differ between federal, state and municipal governments. Further complications arise when looking at such concerns as still photography versus audio-visual recording and editorial versus commercial use.

Keywords: Defining the laws

In an attempt to provide some broad guidelines, it is helpful to understand a few main concepts. The First Amendment to the U.S. Constitution states “Congress shall make no law … abridging the freedom of speech, or of the press. …” This has been interpreted to mean that no government entity may curtail free speech and press activities. Photography in its broadest sense is protected as a form of free expression; however, constitutional protections are not absolute and may be subject to “reasonable time, place and manner restrictions,” and the main keyword is “reasonable.”

As a general rule, both the public and the press have a right to record government officials or matters of public interest in a public place. But it is one thing for a photographer to know his or her rights when recording public officials and quite another for security guards, police officers and government officials to be aware of or even care about those rights.

While it is not illegal to photograph or record images in public places in almost every state, some states have eavesdropping laws that criminalize recording oral conversations without permission, which has led to arrests due to the fact that videographers don’t usually make silent movies. When arrested, photographers are also typically charged with disorderly conduct, obstruction of governmental administration or trespass.

Your obligations and your rights

Although there is no obligation to show your images to a law enforcement officer, you may be asked to do so. It is important to know that you do not have to consent to such a request. Under certain conditions known as “exigent circumstances,” where an officer believes that your recording might contain evidence of a crime and subsequently seize your equipment and material in order to prevent it from being lost or destroyed. However, it may not be searched, viewed and copied without proper legal authority such as a search warrant or subpoena. Under no circumstances may anyone delete those recordings or order you or a third party to do so.

What to do if confronted

So what steps does a videographer or photographer take when faced with these ever-increasing encounters? Obviously every situation is different, but it is important to stay calm, speak in a conversational tone and be respectful. Whenever possible, try to keep recording the interaction as it may be your best evidence of what actually happened should you get arrested. If the officer or guard is willing to talk, which often they are not, try to explain your position and respectfully assert your understanding of your rights. If the officer still tries to stop you, request to speak to a supervisory or public information officer, and if that is not possible, you may be faced with a personal decision as to whether what you are doing is important enough to risk arrest. No one else can make that decision for you, as it is your liberty that is at stake. In case you are arrested, you may win the legal battle but that usually takes some time and may also be costly.

A landmark case when lines become blurred

Take the case of Simon Glik who was arrested in 2007 by Boston police for recording the arrest of another citizen. Glik was charged, among other violations, with violating the state’s eavesdropping law which prohibited the surreptitious recording of oral conversations. Those charges were dropped and he commenced a federal civil rights lawsuit against the officers and the police department. After a widely heralded decision by the U.S. Court of Appeal for the First Circuit, upholding “the fundamental and virtually self-evident nature of the First Amendment’s protections” of the “right to film government officials or matters of public interest in public space,” the case was recently settled with the City of Boston paying Glik $170,000.

That First Circuit decision also addresses the fact that the public and the press have a “coextensive” right to gather information including photography and recording audio in public places, recognizing that “changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw.” Additionally, the court stated, “The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew.” The First Amendment right also applies to those individuals with and without press credentials.

Landmark case gets national attention

Unfortunately the decision in Glik is binding only in Massachusetts, New Hampshire, Maine, Rhode Island and Puerto Rico. However, its persuasive reasoning has been cited by courts and lawyers nationwide. Glik was an attorney himself in this case and had the help of the American Civil Liberties Union along with the support of many First Amendment organizations. In another case, a freelance photographer filed suit against the Suffolk County Police for similar civil rights violations.

On May 8, 2012 the United States Court of Appeals for the Seventh Circuit granted a preliminary injunction in ACLU v. Alvarez, blocking enforcement of the Illinois eavesdropping statute as it applies to audio recording of police performing “their duties in public places and engaging in public communications audible to persons who witness the events.” What this means is that in Illinois, Indiana and Wisconsin, permission is not required to record (video and audio) police officers or anyone else while they are in a public place (see below for limitations on how those recordings may or may not be used.)

Homeland security

Be cautious of recording potentially sensitive material like planes and building entrances, it may concern the Department of Homeland Security, thankfully they provide guidelines.
Be cautious of recording potentially sensitive material like planes and building entrances, it may concern the Department of Homeland Security, thankfully they provide guidelines.

Another measure that has led to photography as a suspicious activity comes from language found in documents published by the federal government. The ISE-SAR Criteria Guidance, issued by the Department of Homeland Security, lists photography as a potential criminal or non-criminal activity. “Taking pictures or video of facilities, buildings, or infrastructure in a manner that would arouse suspicion in a reasonable person. Examples include taking pictures or video of infrequently used access points, personnel performing security functions (patrols, badge/vehicle checking), security-related equipment (perimeter fencing, security cameras), etc.” The ISE-SAR Criteria Guidance also notes: “These activities are generally First Amendment-protected activities and should not be reported in a SAR or ISE-SAR absent articulable facts and circumstances that support the source agency’s suspicion that the behavior observed is not innocent, but rather reasonably indicative of criminal activity associated with terrorism, including evidence of pre-operational planning related to terrorism. Race, ethnicity, national origin, or religious affiliation should not be considered as factors that create suspicion (although these factors may used as specific suspect descriptions).”

While this revised definition of photography is certainly welcome, there are many organizations including the Los Angeles Police Department that still define under suspicious activity someone who “takes pictures or video footage (with no apparent esthetic value, i.e., camera angles, security equipment, security personnel, traffic lights, building entrances, etc.)”

Unfortunately these definitions have erroneously created the impression in law enforcement circles that photography is a categorically suspicious activity rather than a constitutionally protected form of expression. It has also led many officers to stop, question, interfere with and detain those recording on city streets in an unrealistic and expanded view that automatically equates photography with terrorist or criminal surveillance.

No farm shots? Driving shots?

New legislation in a number of states has also criminalized photography and recording of farm activities and in some states makes it illegal to possess and distribute such images and recordings. These bills have been introduced in a number of states including: Indiana (SB 184), Florida (SB 1184/HB 1021), Minnesota (HF 1369/ SF 1118), Missouri (SB 695), Nebraska (LB 915), Illinois (HB 5143), Iowa (HF 589), Utah (HB 187), and New York (S5172). Another Illinois bill (HB 5099) prohibits the use of devices capable of digital photography and videography while operating a motor vehicle.

When is public really public?

Once again, the general rule for recording is: where there is public access in such traditional public forums as a sidewalk or a park you are permitted to record anything in plain sight (i.e. buildings, people) because in such places there is no reasonable expectation of privacy. In other areas that are generally open to the public but may be privately owned such as a mall, recording may be restricted either by posted signs or by mall personnel. In order to avoid confrontations it is always a good idea to check with property owners to obtain permission before recording.

The private sector

Press passes are not one-size-fits-all, and the pass you have might have restrictions, so, investigate your access.

It also is important to remember that the First Amendment only protects against governmental limitations. Businesses and non-government organizations may require special credentials in order to gain entry to an event and to record. Usually such credentials may only be obtained by agreeing to or meeting certain requirements specified in writing, such as NFL sideline passes. Many press credentials issued by law enforcement agencies allow the bearer to cross police and fire lines under certain conditions. Whenever possible, apply for credentials to specific events well in advance because a basic press pass (if you have one) may not suffice.

Recording public meetings

The right to record public officials or record at public meetings is another question of concern to photographers. Most governments have freedom of information statutes as well as open meeting laws that address those questions; however, it is important to check the law in your area. For example, in California, when attending a meeting of a governmental body that is required by law to be open to the public, you may record audio and/or video unless the governing authority makes a determination that such recordings may disrupt the proceedings because of such things as noise, lighting or obstructing a view. These restrictions must be reasonably related to achieving a governmental purpose and may not be imposed because the officials do not like the opinions of the person doing the recording. The same would be true of a government official out in public or attending a public meeting.

Public, private, permits and proof

There is also a very big distinction between recordings made for editorial (journalistic) purposes and those made for commercial gain (advertising or product sale). Depending on the type of photography in question, many parks and transit systems require those wishing to record to obtain a permit in advance. Usually such permits require that a fee be paid and that proof of insurance be provided. Another important difference is the need for model releases when recording someone for commercial purposes. It is very important to remember that just because you may have a right to record something or someone does not mean you have a right to use that material in any way you choose, even when shooting in a public place.

Resources for support

The National Press Photographers Association (NPPA) has been involved in many of the incidents mentioned above.

There is no excuse for police and security officers to intentionally disregard a citizen’s right to record an event occurring in a public place but it will continue to happen until departments create better guidelines, conduct proper training and administer discipline when appropriate. This will only come about through greater awareness of these incidents and strong advocacy on behalf of journalists and citizens by such groups as the Reporters Committee for Freedom of the Press, NPPA and personal accounts from blogs like Photography Is Not A Crime. It may also require filing suit in egregious cases, such as the one recently brought by NPPA member Philip Datz.

Being aware is key

In a time of technology and terrorism, photojournalists throughout the world have risked and in some cases given their lives to provide visual proof of governmental activities. Sadly, what is viewed as heroic abroad is often considered as suspect at home. It is therefore incumbent that those who wish to exercise these freedoms, be aware of their rights and do their best to counter such abridgments through heightened awareness and education.

About the author

Mickey H. Osterreicher is of Counsel to Hiscock & Barclay, and serves as general counsel for the National Press Photographers Association (NPPA). He is a member of the MLRC Newsgathering Committee, the American Bar Association Communication Law Forum and the New York State Bar Association Committee on Media Law. He has been a photojournalist for over thirty-five years and drafted letters to law enforcement agencies in all of the incidents listed in this story. He met with the NYPD Police Commissioner along with other media groups in order to help resolve issues arising from the arrests of journalists covering events at Occupy Wall Street and has been conducting training with the Chicago, Tampa and Charlotte-Mecklenburg Police Departments in preparation for the NATO Summit and the Republican and Democratic National Conventions in those respective cities. Click here for more information on NPPA advocacy.

Legal Disclaimer

This feature addresses only laws in the United States of America and its territories. Videomaker community members in other countries need to research laws pertaining to their own rules. U.S. citizens traveling outside of the U.S. need to understand they are subject to that country’s laws, not those of the U.S. Constitution.

This feature is not intended to be legal advice nor does it create an attorney-client relationship. Laws and regulations vary from one area to another and federal, state or local laws may apply. Anyone seeking legal advice should contact an attorney in their area of the country familiar with these types of situations and First Amendment Law.

Mickey H. Osterreicher serves as general counsel for the National Press Photographers Association (NPPA) and is a member of the MLRC Newsgathering Committee, the American Bar Association Communication Law Forum and the New York State Bar Association Committee on Media Law.

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