Texas bill would establish a 25-foot police photography "buffer zone"

[johne37179]

<p>No police beatings, but a number of law enforcement events, including significant civil disturbances. How about you?</p>

[john_h.1]

<blockquote>

<p>"going to law school and becoming a lawyer. I can tell you that the parallels are applicable and this law is sustainable under the First Amendment... ...a 25 foot rule is eminently reasonable."</p>

</blockquote>

<p>Eminently? After all the well reasoned (and ignored) rebuttals here about how, in practice, the restrictions can be unworkable and ONLY apply to 1st Amendment activity. Trotting out the "I am lawyer"card to make oneself appear more authoritative, as you have, can be unbecoming but I'm going to do so myself, this particular time, to state 'as a lawyer" I find the assertion as laughable.</p>

[bobatkins]

<p>Better leave your gun at home or you have to stay 100ft away. Guns are apparently 4x more dangerous than cameras. "For Texans legally carrying a firearm, the buffer zone required would be 100 feet under Villalba's proposal." Surely the NRA will be objecting to that one...</p>

<p>If you are allowed closer than 25ft without a camera I can`t see any possible justification to restrict anyone with a camera to 25ft. You could argue that anyone with a gun should stay 100ft away for safety, but unless you think a photographer is going to use their camera as a weapon it looks like this legislation is aimed at suppressing the recording of evidence, since interfering with a police officer in the course of their duty is already an offense.</p>

<p>Texas does not have the best history when it comes to laws restricting photography</p>

<p>"Monday, September 29, 2014<br>

HOUSTON (KTRK) -- The Harris County District Attorney's office is reviewing cases following a Texas Court of Criminal Appeals decision that tossed out part of the law banning improper photography in public places. By an 8-1 vote Wednesday, the Texas Court of Criminal Appeals upheld the decision of an intermediate state appeals court, ruling that the state ban on "improper photography" is too broad and violated First Amendment free-speech rights."</p>

[Damon DAmato]

<p>Still waiting to hear about all the cops injured, and all the crime scenes ruined, by photographers. There must be <em>dozens of examples</em> to support the necessity this very important legislation. <br /><br />I know I can easily find dozens of videos that resulted in successful civil, criminal, internal cases against police for assault, civil rights violations, theft, false imprisonment, etc. under color of authority. </p>

[john_h.1]

<blockquote>

<p>"For Texans legally carrying a firearm, the buffer zone required would be 100 feet under Villalba's proposal."</p>

</blockquote>

<p>This one targets two Bill of Rights Amendments simultaneously with no apparent reason. If someone were waving a pistol around at the scene of an arrest, there would be a genuine issue but, again, one that is widely and easily addressed by other laws relating to disturbances and interference. Someone with a concealed weapon would cause no disruption whatsoever on account of having a firearm. Moreover, the bill requires the firearm restriction ONLY if it is with someone using a camera which serves no ascertainable purpose and there is no history of photo taking citizens getting out of hand with firearms. Making it a compounding arbitrary restriction on multiple well established rights. Nothing says overturn me more than a law of arbitrary application trampling on multiple Bill of Rights. Plus, it applies ONLY BOTH RIGHTS ARE OCCURRING AT THE SAME TIME. Compounding the compounding.Notwithstanding a singular claim, here, of that scenario being not only reasonable but "eminently" so.</p>

<p>Edit: It also exempts "journalists". Adding yet another layer of constitutional exclusion and another layer or arbitrary application. Who is going to know the difference when it matters? Will the exemptees be wearing "PRESS" cards in their hats?</p>

<p>http://benswann.com/tx-bill-restrict-filming-of-police-segregate-journalists/</p>

[johne37179]

<p>The "rebuttal" here and much of the argument assumes a right that does not exist in US law -- the absolute right to photograph. Further, where the courts have found a limited right to photograph, it always is found under the freedom of the press provisions of the first amendment and applies only to "communicative" photography. The courts have been quite generous in describing who might be a press photographer, but have never extended that right to citizens in general. In all cases where the right has been found, it is tempered by restrictions on time, place and manner of the photography and in some case involving police, absolute prohibitions (crime scenes, for example). Here is a discussion from a good site with I recommend. <br>

<strong>Time, place, manner restrictions: Accident and crime scenes</strong><br>

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.<br>

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.” <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0491_0781_ZS.html" target="_blank"><em>Ward v. Rock Against Racism</em></a><em> </em>(1989) An example of such restrictions would involve access to crime and accident scenes.<br>

Even though crime and accident scenes can be considered matters of public interest, the Supreme Court in <em><a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=408&invol=665" target="_blank">Branzburg v. Hayes</a> </em>(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 <em>constitutional</em> right to be there.<br>

For example, in 2009 a federal judge in California heard the case <em><a href="http://scholar.google.com/scholar_case?case=10912720922039083961&hl=en&as_sdt=2&as_vis=1&oi=scholarr" target="_blank">Chavez v. City of Oakland</a> </em>involving a photographer taking pictures of an accident scene on an interstate. Raymundo Chavez, a staff photographer for <em>The </em><em>Oakland Tribune</em>, 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.<br>

U.S. District Judge Charles R. Breyer cited <em>Branzburg v. Hayes</em> 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.”<br>

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

<strong>Photography/videography and police activity</strong><br>

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.” <em><a href="http://www.law.cornell.edu/supct/html/01-309.ZS.html" target="_blank">Hope v. Pelzer</a> </em>(2002)</p>

<p>Two U.S. Circuit courts, the 1^st and the 11^th, say that there is a right to photograph/videotape police activity. The 9^th Circuit provides some protection if police activity is considered a “matter of public interest.” Courts in the 3^rd, 4^thand 5^th 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.</p>

<p>http://www.firstamendmentcenter.org/photography-the-first-amendment</p>

[andylynn]

“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)

 

Hope is a 1983 case. The "clearly established" standard is used when suing an official for a violation of rights, not

deciding whether a law is constitutional. If a court were to rule on the constitutionality of a statute like this, the question

would be whether it's an impermissible infringement on 1st amendment rights and/or equal protection violation, not

whether an official would have known that.

 

EJ, the Court just struck down a buffer zone law last year: http://www.scotusblog.com/2014/06/court-strikes-down-

abortion-clinic-buffer-zone-in-plain-english/ - the parallels are pretty clear.

[john_h.1]

<blockquote>

<p>"The "rebuttal" here and much of the argument assumes a right that does not exist in US law -- the absolute right to photograph."<br /> It doesn't assume that at all. It discusses arbitrary application which many discussed. A common and well settled fatal flaw. Yet, it is completely ignored. I guess it can't be acknowledged since it makes a mockery of the claim that the restriction is "EMINENTLY reasonable".</p>

</blockquote>

<p>The <strong>Ward</strong> decision upheld restrictions on account they were content-neutral. The restriction here will prevent content for close ups, for ability to capture a scene and allow others who can also exercise free speech and those that don't access. It doesn't allow for situational circumstances at all. The other basis was that it was a narrowly tailored restriction. This one obviously is not as it bans ALL the protected activity no matter the circumstances. Ward was a circumstance based case. It is an off point case.</p>

<p>The <strong>Branzburg</strong> case relies, in part, on another case the saying First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. This bill concerns allowing the public to be within the area, just not anyone photographing. Ridiculously off point. <br /> <br /> Another case <strong>Branzburg</strong> relied upon involved someone causing disruption impeding traffic. This bill requires no disruption. Other cases cited include matters where the public is excluded. This bill doesn't. The case is off point.<br /> <br /> <strong>Chavez</strong> was the case where the photographer was actually disruptive as the basis for the decision. Not an issue here.</p>

<p>Let's indulge in relevant information instead, shall we?</p>

[johne37179]

<p>Andy, I agree with your analysis, but I don't think it is directly applicable to this law. While the Supreme Court has not addressed this issue specifically, and their is a division in the Circuit Courts, the prior case law that applies to the photographing of the police are consistent in the application of the time, place and means restrictions, the issue will only be if the restriction is reasonable -- should this law be litigated. I would attack this law on its arbitrary distance -- Why not 100 feet or 10 feet? What is the rationale for 25 feet? It is clear that restrictions can be applied, the only issue is the reasonableness of the restriction. The abortion clinic case is clearly distinguishable because it is a universal free speech right that is held by every citizen. The case of photographing the police has been determined to be a freedom of the press issue, not a general free speech issue. There would have to be a material change in the view of photography in that case to make it a free speech right instead of a freedom of the press right.</p>

[andylynn]

From where I am I don't have access to proper research tools but I don't see any reason Glik v Cunniffe shouldn't be

adopted in other circuits. The 7th agreed with it. The 5th has a libertarian streak - I don't think it's a stretch that they could

as well. Reasonable T/P/M restrictions are generally ok, but the buffer zone case suggests that a zone that's a number of

feet, without a good reason and with the state having less restrictive ways to accomplish keeping people out of the way - I

know it's not already a clear call but a strong case can be made.

[johne37179]

<p>Andy, I agree completely with your analysis, with one small exception -- look where the 9th Circuit comes down on this issue. However, I have won cases against the government where they imposed a policy based on an arbitrary number. The government cannot be arbitrary and win. In this case, if they have some sound basis for selecting 25 feet -- which we don't know because it is not in the public record -- they will likely prevail. On the other hand, if they just picked a number, they will lose. The government can clearly impose restrictions on speech and by analogy photography and do so all the time -- try taking a camera or a cell phone into a secure government facility and bringing it back out again. When I go to places like that everyone places their phones, laptops, tablets, etc, into lead lined lockers before being admitted into the facility when they are badged in. So the issue is not whether or not restrictions can be imposed on photographing or videoing the police, but what is the basis for the restriction.</p>

[john_h.1]

<blockquote>

<p>"The abortion clinic case is clearly distinguishable because it is a universal free speech right that is held by every citizen."</p>

</blockquote>

<p>As though photography for expressive purposes isn't.</p>

<p> </p>

<blockquote>

<p>The case of photographing the police has been determined to be a freedom of the press issue, not a general free speech issue.</p>

</blockquote>

<p>The claim now is that there is no right to make images or video of scenes that happen to include police (in ANY scenario all of the sudden) for social expression, for evidence gathering to provide for others, for education, ect. ect. All expression and all practical purposes being automatically suppressible. <br /><br />Sure.</p>

<p> </p>

[john_h.1]

<blockquote>

<p>the issue is not whether or not restrictions can be imposed on photographing or videoing the police, but what is the basis for the restriction.</p>

</blockquote>

<p>No one said otherwise.</p>

[john_h.1]

<blockquote>

<p>"if they have some sound basis for selecting 25 feet -- which we don't know because it this law is sustainable"</p>

</blockquote>

<p>Now the 25 foot limit is only reasonable <strong>IF</strong> there is some justification MAKING it so. None is which is known. Before it was claimed to be "eminently reasonable" per se.<br /><br />Progress.</p>

[johne37179]

<p>John, I don't know whether you just don't read carefully, or have no knowledge of the law. The approach taken by Texas is eminently reasonable since every court that has addressed this issue has upheld the principle that the government may impose limitations on "time, place and means." I raised the 25 foot challenge as the only possible argument against the law, as there needs to be some justification for choosing 25 feet, instead of 24 feet or 36 feet, or some other number. I suspect that the drafters of the legislation did have a reason for selecting that number. It is only in the case that they did it in an "arbitrary" manner that it is vulnerable -- in which case they only need to select the number with some reasoning behind it. <br>

So, yes, the statute is eminently reasonable on its face, or per se. </p>

[john_h.1]

<p>Sure it is "facially" valid to criminalize non- traditional journalists from exercising the same exact activity as as journalists do. It is "facially" valid to criminalize ALL conduct they do while traditional journalist can do ANYTHING that doesn't violate another law. It is facially valid to criminalize 2nd Amendment firearm rights because you happen to be exercising 1st Amendment rights at the same time. <br /><br />Facially valid. Meaning it either is or isn't valid. As opposed to "as applied" analysis depending on circumstances which this bill doesn't do at all. IOW, it is eminently reasonable unless it isn't. </p>

<p>So much for progress.</p>

[bobatkins]

<p>So you can stand 3ft from a police officer if you don't point a camera at him? It's only an offense if you take a picture? How can that be constitutional. The bill also establishes a 100ft zone if you take a picture AND carry a gun. Can you stand 3ft away if you just have the gun and not a camera?</p>

<p>There's no way that the act of photography per se can be a constitutionally prohibited activity in a public place.</p>

<p>The bill serves to make the act of taking of a picture within 25ft of a police officer be interference by definition</p>

<p>"For purposes of Subsection (a)(1), an interruption, disruption, impediment, or interference that occurs while a peace officer is performing a duty or exercising authority imposed or granted by law includes a person filming, recording, photographing, or documenting the officer within 25 feet of the officer"</p>

<p>Presumably documenting by sketching or taking written notes would be equally illegal (and equally unconstitutional). Arguably just remembering what happened and later writing it down could be construed as documenting and so fall foul of the same proposed statute.</p>

<p> </p>

[johne37179]

<p>Bob, you raise a good question. However, the constitution does not address it. Photography not having been invented when the first amendment was drafted. The area of the law that has been applied to this issue is freedom of the press. What area of the constitution would you apply to your argument?</p>

[john_h.1]

<blockquote>

<p>"The area of the law that has been applied to this issue is freedom of the press. What area of the constitution would you apply to your argument?"</p>

</blockquote>

<p>The cases in the law enforcement situations happen to have journalistic purposes to the communication or expression. Other cases recognize expression and communicative intent as a general freedom of speech issue as to photography. As long as there is an intent to communicate the results of the photography to others then freedom of speech cover the other communicative purposes.<br /><br /> Obviously.</p>

[bobatkins]

<p>Presumably the same "constitution" that the Texas court of criminal appeals cited in their rejection on limitation on photography imposed by the "improper photography" law that the Texas legislature tried to implement. In that case they found it violated the First Amendment.</p>

<p>Apparently the Texas court of criminal appeals weren't swayed by the somewhat weak argument that since photography hadn't been invented then the constitution couldn't address it. The first amendment addresses the right to a free exchange of ideas. It does not address the method or means of expression. </p>

<p>"<em>Monday, September 29, 2014</em><br>

<em>HOUSTON (KTRK) -- The Harris County District Attorney's office is reviewing cases following a Texas Court of Criminal Appeals decision that tossed out part of the law banning improper photography in public places. By an 8-1 vote Wednesday, the Texas Court of Criminal Appeals upheld the decision of an intermediate state appeals court, ruling that the state ban on "improper photography" is too broad and <strong>violated First Amendment free-speech rights</strong>.</em>"</p>

[john_h.1]

<p>It is noteworthy that the Texas Improper Photography statute at least had a purpose that related to photography. Namely that the photography use constituted some potential harm. The sensibilities of the photographed. Which could only occur with photography in that way with the photography. Those sensibilities were not enough but other photography dissemination statutes involving sensibilities, such as voyeurism, do. There was some rationality and relevance behind it. <br /><br />This bill bans a constitutionally protected practice for reasons that have nothing, whatsoever, to do with photography. As bad as that is alone, it allows non-protected conduct of no material difference to the goal sought. Just one of the various reasons the proposed legislation is arbitrary and unconstitutional on its face. Not just as applied. <br /><br /><br /></p>

[craig_gillette]

<p>Really? The question, or at least part of the question, is the selection of the distance being arbitrary or not. One can easily try this out at home. The Tueller discussions are completely applicable. Simply find a point 20-25 feet away and see how quickly a person can close that distance. For those of you unicorn and skittles sorts, I'd suggest looking up slungshot and see if it stretches your imagination to see what similarity that offers to a camera on a strap. I suppose it's up to you but I wouldn't run across the room and smash my camera against a tree or anything like that for the sake of determining if a camera might be weaponized. </p>

<p>As it is, laws are much more easily enforced (and obeyed) when there is a discrete or objective measure at work. The problem is, many situations don't lend themselves readily to objective rules and it's hard not to be at least a little arbitrary. One size usually doesn't fit all. </p>

[john_h.1]

<blockquote>

<p>"Is it is, laws are much more easily enforced (and obeyed) when there is a discrete or objective measure at work. The problem is, many situations don't lend themselves readily to objective rules and it's hard not to be at least a little arbitrary. One size usually doesn't fit all."</p>

</blockquote>

<p>Exactly right. <br /><br />A measure can be a little arbitrary (meaning as as applied) constitutionally and adjusted accordingly to provide exceptions to save the measure overall. Sometimes, however, it is plainly or facially arbitrary. Meaning, it is not only unduly restrictive constitutionally as applied, it unworkable for just about anyone. Even the most skilled and equipped can be frustrated by the countless instant variables. Then there is the traditional journalist exception. Facially arbitrary due to there being no discernible reason for an exception practically PLUS no discernible reason as to superiority in having a right to report or express. Facially arbitrary as to the firearm possession multiplier for the same dual reasons. Facially arbitrary because it only relates to protected journalistic and expression related conduct with no discoverable difference in the supposed goal. <br /><br /> There are so many layers to this one, it would be a mega-facially arbitrary law.</p>

[Landrum Kelly]

<blockquote>

<p>it's about controlling interferences with the officers at work.</p>

</blockquote>

<p>No, it has nothing to do with interfering with police business. The police simply do not want witnesses, and with good reason. They are liable for both civil and criminal charges if they are discovered to be not only in overt violation of the law, but negligent as well.</p>

<p>Who will police the police? WE WILL. If we as photographers flee the field, who will do it?</p>

<p>By the way, this whole thread is about political speech as it relates to photography, and, believe it or not, it is protected speech under the Constitution. Therefore, be extremely careful about how and why you delete specific entries.</p>

<p>How can comments on Photo.net be protected speech, you ask? Is this not private property?! It is so because Photo.net engages in interstate commerce and thus falls under federal jurisdiction, just as it would if the issue were discrimination in employment. If any post is deleted because someone disagrees with the content or political point of view of the poster, then that person and his employer is liable for civil damages under the law.</p>

<p>As a card-carrying member of the ACLU, I am prepared to make that point in a court of law if necessary.</p>

<p>As Justice Rutledge said in <em>Thomas v. Collins</em> (1945), First Amendment rights "have a sanctity and a sanction not permitting dubious intrusion." If you have further questions, read the case and associated case law and commentary.</p>

<p>Since I did not make a screen shot of my first post, rest assured that I will do so with this one.</p>

<p>I am a photographer, after all. This is what I do. I am also copying the entire thread, and I will be forwarding it and the associated screen shot to the appropriate persons, depending on what happens next.</p>

<p>Thank you.</p>

<p>--Lannie<br /> J. Landrum Kelly, Jr., Ph.D.</p>

[john_h.1]

<blockquote>

<p>How can comments on Photo.net be protected speech, you ask? Is this not private property?! It is so because Photo.net engages in interstate commerce and thus falls under federal jurisdiction, just as it would if the issue were discrimination in employment.</p>

</blockquote>

<p>1st Amendment freedom of speech protections are a shield only against the government. Not against private people and entities suppressing or acting against speech. The jurisdiction does not arise from the Commerce Clause like some laws regulating what amounts to interstate commerce do. Indeed, freedom of speech is not even a law. It forbids laws. It arises from being specifically mentioned in the 1st Amendment and that only applied to the states in 1925. http://en.wikipedia.org/wiki/Gitlow_v._New_York.</p>

 

<blockquote>

<p>If any post is deleted because someone disagrees with the content or political point of view of the poster, then that person and his employer is liable for civil damages under the law.As a card-carrying member of the ACLU, I am prepared to make that point in a court of law if necessary.</p>

</blockquote>

<p> Unless it is accomplished as a result of a government action, you will fail miserably.</p>