Your rights are being hacked away

[jluebke]

I don't know about the rest of you, but I just looked up the number for my state ACLU chapter and added it to my cell phone address book...

[Brad_]

>>> There's something called the Chilling Effect --...

 

Then please, allow yourself to be chilled. Just don't suggest this is a widespread problem

- especially reported from someone with the maturity of callings cops "pigs."

 

***I*** haven't given up any "rights" lately - have you?

 

 

Shoot or be chilled and paralyzed "wondering about exercising your right to photograph" -

your choice.

[ben conover]

Here's an example of stupidity in the police force, related to photography and current affairs.

 

In the republic of Ireland, the years between 1972 and 1976. There were 48 murders which were not solved and which were covered up. This is fact. The people involved were British paramilitary soldiers, Irish cops, and the high ranking officials. The cases were thrown out.

 

There is no photo evidence that I have seen, although books and t.v. programmes have tried to expose this tradgedy. It is vital that the camera is used to expose the people who are causing the harm, and not the ones who are merely 'trainspotting'.

 

By limiting the rights of people there will be no understanding and the same crimes will happen again.

[ben conover]

Yep, photos are very important sometimes.

 

When the innocent Brazillian guy was shot by the special services at point blank seven times in the head on the London Underground, someone got a cell photo photo.............without that there would have been no news.

[jeff_conrad]

For all the rants on this subject, I've almost never seen any followup. If

Dan encountered a rogue cop, that's unfortunate, but there probably isn't

much that can be done about it. If the cop was following the agency's

policy, the issue may be more serious, especially if there is no legal

basis. But without more information, most of the discussion is pointless

speculation.

<p>

Dan, why not call PATCO, mention what happened, and ask about the official

policy on photography? If they indicate that it is prohibited, I'd ask

where I could find the rules that describe what is allowed. The latter

question can be a bit tricky, because some will take it as a challenge to

their authority; however, if you ask reasonably, many agency personnel are

glad to oblige.

<p>

I think it's helpful to know that things like this happen from time to

time, but I also think it's important to keep things in perspective, and I

think a title such as "Your rights are being hacked away" is a bit

overreaching. There's nothing wrong with being angry and venting; I'd be

at least as mad as Dan had this happened to me. However, as I've said, if

I wanted to enlist support, I'd skip the reference to "pigs" when making

the post, whatever I might really be thinking.

[ben conover]

Jeff :

 

''If Dan encountered a rogue cop, that's unfortunate, but there probably isn't much that can be done about it. If the cop was following the agency's policy, the issue may be more serious, especially if there is no legal basis. But without more information, most of the discussion is pointless speculation.''

 

If you read what I wrote earlier you would perhaps reconsider what you wrote in response. There are plenty of rogue cops, they are trained to have zero tolerance.

 

Let me tell you the true story of the cop who pissed behind a tree:

 

One day a Brazillian man went out for a walk, he was worried because his visa had expired and he needed to keep a low profile. Police survellance had been on full alert and watching out for terrorist threats that day. Roger the rogue was on video surveillance that day, he was bored with his job looking for terrorists and put the video camera down in his car. He stepped outside to piss behind a tree. Our Brazillian dude walks past him as he pisses. Sometime later that day the Brazillian dude is shot dead, he was unarmed and did not even run or struggle. He was sitting in a train car like we all do. The people who shot him were armed police, they had mistaken him for someone else. Lets remenber that our Brazillian dude was of pale complexion in comparison to the target the police were after.

In fact, he looked nothing like the target. Roger the rogue phu***d up big time and the resulting death was captured on a cell phone camera.

 

Roger the rogue cop is probably still pissing behind trees in London and missing the plot, and people are being killed because he is not playing his part in surveillance as he should.

 

The special forces police shot the Brazillian dude in the head 8 times at point blank, one of those shots actaully missed......

 

Why use 8 shots on a busy train car?

 

That is fact, and you should read it again if you don't understand it.

 

Cheers.

[aslan_ivo]

Brad, do we have to wait for this to become a widespread problem before we react? I have been accosted twice by authority figures, one a uniformed police officer and another a building security guard (who was a police officer with a second job) -- and both of them were hassling me for perfectly legal photography of a public place. God knows how often this has happened to lots of people who haven't reported it, or how many people have simply avoided the situation by not taking photographs when and where they had every right to do so. But frankly, even if this is not widespread now, it has to be nipped in the bud. Why? BEcause its these sorts of practices have a way of becoming widespread, and accepted. People should be aware of their rights, and should assert them VEHEMENTLY at EVERY opportunity.

[thomas_sullivan]

heh<br><br><br><center><img src="http://tssullivan.net/street/images/subway%20girls.jpg"><br><br>PATCO Station, 8th & Market, Philadelphia, Pa</center><br><br><br><br><center><img src="http://tssullivan.net/street/images/what%20are%20you%20doing.jpg"><br><br>PATCO, On the Train, New Jersey</center><br><br><br><br><center><img src="http://tssullivan.net/temp2003/images/08.jpg"><br><br>From the PATCO Train, Camden, NJ</center><br><br><br><br><center><img src="http://tssullivan.net/others/images/woodcrest%20parking%20lot.jpg"><br><br>PATCO Parking Lot, Woodcrest, NJ</center><br><br><br><br><center><img src="http://tssullivan.net/images/subdown.jpg"><br><br>Entering, 8th & Market PATCO Station, Philadelphia, Pa</center><br><br><br><br>I don't know how this particular situation went down, Dan may have caused part of the problem........however, in Dan's defense, I've been on PATCO (DRPA = Deleware River Port Authority trains from Philly to Lindenwold, NJ) trains, NJ Transit Trains and Busses, MTA (NYC) trains and busses, Septa (Philly) trains and busses, San Fransisco trains and busses, Greyhound busses, and Amtrack trains.........and PATCO cops are definitely a pain when it comes to photography.

[Brad_]

>>>God knows how often this has happened to lots of people who haven't reported it, or

how many people have simply avoided the situation by not taking photographs when and

where they had every right to do so.

 

God knows how many tens of millions of people who have shot unbothered. Tell you what,

you worry about this stuff - not me - I'll keep shooting like I always have.

 

 

>>>BEcause its these sorts of practices have a way of becoming widespread, and

accepted.

 

Any examples?

 

 

Tom, cool pix, especially like the ballpark one - feels Winograndish.

 

Why is it that people who regularly shoot on the street don't complain about this stuff -

and those that do complain, don't shoot that much?

[thomas_sullivan]

thanks Brad...you have a point there that needs further examination. I think that the amount people get hassled, by the cops or by their subjects, is directly proportional to how "at ease" you feel taking the pic. I know when I first started doing street photographys I was extremely nervous about pointing a camera in anybody's direction........or even letting someone other than my subject see me do it......and I was always getting hassled. These days, I'm totally at ease, I know I belong there shooting. Let me repeat that............I KNOW for a fact that I belong there shooting.........and I very very rarely get hassled. And even the few times someone says something, I can tell by their question, that they also already assume I belong there. It has something to do with the "aura" you give off.

 

How do you get there? I can only say how I got there.............shoot like a madman every chance I get, and one day...........nobody is hassling ya

[Uhooru]

"How do you get there? I can only say how I got there.............shoot like a madman every chance I get, and one day...........nobody is hassling ya"

 

Just like George Costanza beating the lie detector...."remember, its not a lie if you really believe its true.")

 

Still, its easy to talk tough if you're not the one in front of the gun. Actually, I've only been hassled twice..the outcome? I was hassled twice..I just get on with it, but it wasn't a fun experience when a cop was talking about arresting me for taking his photo. YMMV.

[peterblaise]

.

 

Earlier in this thread: "...As far a civil rights goes, there is nothing in the [uS] Constitution that gives anyone the right to..."

 

HOLD IT RIGHT THERE -- THAT'S THE PROBLEM.

 

Some people think they get their rights FROM "the government".

 

Read a little earlier, and later, than the Constitution to rediscover what our society is built on.

 

Read earlier in the Declaration of Independence:

 

"...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..."

 

... in other words, our right are ours because we've sort of BORN with them. Our rights are NOT issued by any "government". You got it backwards! Everyone got it backwards!

 

It's not, "Can I take a picture here."

 

It's, "Have we empowered our self governance to stop anyone from taking a picture here?"

 

I say that the the answer is, "NO, we have NOT empowered our self governance to stop anyone from taking a picture here?" -- because taking a picture creates an immediate copyright ownership property on the part of the photographer, and as such, we have NOT empowered our self governance to prevent or confiscate our free speech rights to create our own copyright property.

 

Read a little later in Lincoln's Gettysburg Address:

 

"...a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal... we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure... we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth..."

 

Neat, huh?

 

Lincoln, in a non-law document, and a shockingly brief one at that, successfully redirected the entire nation to revisit and reconfirm what we're all doing here -- a government OF THE PEOPLE, BY THE PEOPLE, FOR THE PEOPLE, not the other way round, as is the definition of fascism: "people for the government, and the government is all".

 

It's surprising how many people think fascism is okay, so long as the boot rides on someone else's throat, and they think, "I'm okay, no one is coming after me, it's all those DIFFERENT people that are the ones to suffer from this."

 

DIFFERENT people?

 

"...a new nation ... dedicated to the proposition that all men are created equal..."

 

WHAT "different" people?

 

Sad, but even our current president doesn't understand ... but then, he doesn't read, probably can't, and he thinks he answers to a "higher power" than the mere "people"!

 

Click!

 

Love and hugs,

 

Peter Blaise peterblaise@yahoo.com http://www.peterblaisephotography.com/

 

PS - The Magna Carter is an earlier, non-US document, so it's worth a read for us all to put things in perspective. Have at it!

[Brad_]

Exactly what Tom said - it's all about your attitude. If you act like you belong there ("on

duty" as Eric once said) then nothing will happen. Sneak around and project a guilty aura

and you'll raise suspicion - from people around you you're trying to shoot as well as the

cops who look for suspicious stuff. I suspect the first words out of your mouth when

confronted by a cop will set the tone for what happens.

 

I was confronted by a Fed (either FBI or secret service) a couple years ago on a protection

detail - a pretty intimidating looking guy. I was waiting around to get some pix of a

foreign leader shopping in SF. After he saw how friendly I was, acting like I belonged

there, joking around and bs-ing with him, everything was OK. He wanted me to open my

camera bag to take a peek and make sure there wasn't a gun - not an unreasonable

request. Only police encounter in four years of street shooting - tens of thousands of pix,

including on trains, subways, bridges, airports, etc - and IMO it hardly qualifies as an

encounter.

 

I'm way more worried about addicts and drunks.

[yeux tortu]

Actually the Magna Carta was a granting of rights from the sovereign to the people.

 

We are deluded into thinking that we live in a world based on John Locke ideals, but in fact we are in a world as understood by Thomas Hobbes.

[j.w.]

(I suppose it rather meaningless, having gotten onto this thread so late, but here goes:)

 

Bernard seems to be arguing that the act of photo-surveillance in public is an abnormality of such an extreme nature that it can be construed by any reasonable body of security personnel as a preparatory act of terrorism.

 

If we (hypothetically) agree, as reasonable people, that this is true, then by default every security camera, every aerial and space surveillance platform, whether corporate or government owned, is also an act of terrorism.

 

I am willing to submit to the former proposition as long as I am permitted to confront the implications of the latter.

[jeff_conrad]

I don't know if it's <em>all</em> about attitude, but the right attitude

certainly helps, whether it's crashing parties or taking pictures. It

sometimes helps even when standing up to a cop—I've cowered as friends of

mine talked back to cops in such a brazen manner as I'd never even

contemplate, and been amazed as they nearly always got away with it. I've

known people who have gone so far as to wear reflectorized orange vests

(the kind construction workers and surveyors wear), and claim they never

get hassled, despite setting up large tripods in crowded areas. I've never

quite been able to bring myself to do this ... For certain, the sneak

usually gets a less than favorable response from everyone, be it at a nude

beach or a crowded event (and nowadays, the former probably will get you

nailed for improper photography).

<blockquote><cite>

I suspect the first words out of your mouth when confronted by a cop will

set the tone for what happens.

</cite></blockquote>

<p>

Undoubtedly, this is true, not only for the photographer but also for the

cop (security guard, whatever). I've had a number of close encounters of

both kinds, and if whomever approaches is friendly, so am I, and nothing

usually comes of it. Alternatively, if I get something like "You can't

take pictures here" or a hostile "What are you doing here?", I'm usually

less than enthusiastically cooperative, especially if I know they are full

of s---t. Common sense dictates that one temper one's lack of enthusiasm

when talking to a cop, but I nonetheless think they owe me every bit as

much courtesy as they seem to think I owe them, especially when there is no

legal basis for detention. Somewhat surprisingly, standing reasonably firm

usually works better than cowering. This doesn't, of course, extend to

using "pig" as a salutation ...

[figo hun]

It is a pity that policeman is not here.

He can tell us more and so the discussion can be more interesting.

Some people just care for their own rights(personal right,private right)when they call for struggling for right.

[ben conover]

Figo, the policeman is doing a job, it is not a question of personality. Unfortunately the policy which distates how officers behave is neanderthal in it's sentiments, so I doubt if the cop would give a shit anyhow.

 

Cheers

[michael s.]

There is a real risk in generalizing based upon one's personal experiences and the experiences of friends, whether those experiences have been almost universally favorable (as appears to be the case with Brad and some others), or perhaps more troubling.<p><p>

 

Call me an old <a href=http://www.law.cornell.edu/constitution/constitution.billofrights.html> Fourth Amendment</a> fuddy duddy. I still say that seizures of the sort alleged here should be based upon probable cause.<p><p>

 

To Dan, I'd say that photo.net may be a good place to come to commiserate, discuss, and blow off steam, but <a href=http://www.aclupa.org/>this office</a> is the better place to call to inquire as to: (i)whether your rights may have been violated; and (ii)whether you may have recourse.

[thomas_sullivan]

"...We are deluded into thinking that we live in a world based on John Locke ideals, but in fact we are in a world as understood by Thomas Hobbes."

 

Deluded!? Hobbes ideals may be what this world is running under, but they are ram rodded down our throats. Lockes ideals are the natural state of human beings. Unfortunately people don't read enough, especially of what these two say, to understand the difference between an authoritarian government and a government of the people for the people. Besides, an authoritarian government is easier to initially live under..........someone else has to make all the decisions.......the lazy don't have to think for themselves.......someone else does it for them. A free government does not make the decisions, it does what the people want to do. This means that the people have to think for themselves..........oh, so much work and all that thinking too. Well, if you want freedom, you have to think for it........not put it in the hands of others. Thats the real problem in today's world........we're all lazy!

 

sorry for the rant............but, deluded I ain't........and that remark really pissed me off.

[ben conover]

1066 = Battle of Hastings.

 

Magna Carta was written when exactly? circa. 1,000 years ago?

 

Why the delve into history that has no bearing on the present?

[35mmdelux]

Friend -

 

I understand your anger. I'm the guy the right-wingers hate. A left leaning militant from Berkeley. I have no doubt about the governments over-reaction in many instances.

 

But we're in a war, man, and we got alot guys and gals over there trying to do the right thing. There is no doubt in my mind that the government lied and I said as much before the first shot was fired.

 

In spite of the hysteria, I'm cutting them some slack this time. We gotta win this war, and it is a war, and we gotta get our people back.

 

Once accomplished we gotta demand our rights restored in full and demand a full accounting. American representatives at all levels of the American government dropped the ball not demanding an accounting after the VietNam political debacle. Their incompetence cost 59,000 American lives for nothing. Forget and we are doomed to repeat the misery.

 

Don't forget that Vietnam started with lies as well, when Pres. Johnson said we had been attacked to justify the war. News media photographers got to keep the pressure on. We gotta win this war.

[ben conover]

Paul, it's a war you can't win. All you can do is suck oil out of a nation too sick to heal itself. Then give them a constitution or is that Magna Carta?

 

Cheers.

[peterblaise]

I think this below is a worthy read on this topic. Has everyone printed it and studied it? I think it raises the level of and demand for accuracy in our discussion. Let's have at it:

 

======================

 

Re: Proposed Ban of Photography on New Jersey Public Transportation Proposal Number PRN 2005-156

 

http://www.nppa.org/news_and_events/news/2005/11/N_Jersey_Photo_Ban_Protest.pdf

 

October 31, 2005

 

To: Mr. George D. Warrington Executive Director New Jersey Transit Corporation One Penn Plaza East Newark, NJ 07015-2246

 

Dear Mr. Warrington:

 

Please accept this letter as a comment by the National Press Photographers Associations(footnote 1) the Radio-Television News Directors Association(footnote 2), the Reporters Committee for Freedom of the Press(footnote 3), and the Society of Professional Journalists(footnote 4) on the proposed rules of the New Jersey Transit Corporation ("NJ TRANSIT") prohibiting photography on all property owned by NJ TRANSIT, except when conducted by members of the press under certain conditions, or by other authorized individuals.

 

In these comments, we oppose adoption of the proposed rules as they are presently drafted because, although they are intended to serve the important safety and security interests of NJ TRANSIT, the current formulation (1) would violate the First Amendment rights of photojournalists and other photographers, (2) would not achieve NJ TRANSIT's goal of enhancing national security by preventing intelligence gathering activities on NJ TRANSIT property, and (3) would impair the ability of photojournalists to perform their jobs effectively. We therefore respectfully request that NJ TRANSIT reject the proposed rules and work to develop photography rules that are more narrowly tailored to serving NJ TRANSIT's important goals.

 

I. NJ TRANSIT's Proposed Rule Changes.

 

This past May, NJ TRANSIT released a rule proposal that would prohibit photography, film, and video recording in and on all property owned by NJ TRANSIT. The proposed rules state that:

 

No person, while physically present in or on NJ TRANSIT facilities or equipment, shall photograph facilities or equipment, for commercial and public purposes, without first obtaining a commercial expression contract.(footnote 5)

 

No person, while physically present in or on NJ TRANSIT facilities, shall photograph facilities or equipment, for noncommercial purposes, without first obtaining a Hobbyist Photo Pass/ID Badge. (footnote 6)

 

No person, while engaging in non-commercial photography, shall use lighting equipment or flash, nor shall they use tripods or any other stands or stanchions. (footnote 7)

 

Working journalists are exempt from [these] commercial and noncommercial expression provisions [but] are expected to notify the NJ TRANSIT Press Office...of their intention to engage in photography in or on NJ TRANSIT facilities or equipment. (footnote 8)

 

"Photograph" or "photography," under the proposed rule, mean "the use of any digital or analog device to record or transmit still and/or moving visual images of NJ TRANSIT facilities or equipment or persons in or on such facilities or equipment."(footnote 9) In turn, the term "facilities" means all stations, yards, and/or terminals owned or operated by NJ TRANSIT under contract, lease or other agreements or arrangements, including joint service arrangements... Further, the term "facilities" shall mean rights of way and related trackage and sidings, rails, catenary systems, depots, yards, tunnels, bridges, structures, storage areas, parking areas, offices, buildings, signal and communications systems and networks, dispensing machines, signal power, power plans, emergency exits, stairways, ventilation systems, signage, lighting, repair and maintenance shows and other property, and all things, used, owned, leased, held or occupied by NJ TRANSIT for or incidental to the operation, rehabilitation or improvement of rail, light rail, ADA paratransit and/or bus operations in the State of New Jersey and other jurisdictions where NJ TRANSIT operates to and from. (footnote 10)

 

If adopted, therefore, the proposed rule will ban all photography by non-journalists working without prior permission on all NJ TRANSIT property, regardless of whether that property is used to provide direct public transportation services. Moreover, it will require journalists to notify NJ TRANSIT before taking photographs, including of breaking news events.

 

NJ TRANSIT is undoubtedly entitled to implement rules to preserve safety and security of its facilities by restricting conduct that threatens those interests. Although NJ TRANSIT's specific motivation for proposing these rules is not discussed in the proposal, NJ TRANSIT is presumably concerned about protecting both national security interests and addressing traditional passenger safety concerns. Rules addressing these concerns are undoubtedly both appropriate and necessary, but NJ TRANSIT's proposal, as it is currently drafted, would restrict far more expressive conduct than necessary to serve these interests and would therefore violate the First Amendment.

 

II. The Proposed Rule Violates the First Amendment Rights of Photojournalists and Other Photographers.

 

A. Freedom of the Press

 

It is well established that a free and vigorous press is a vital component of a healthy democratic society. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 681 (1972) ("We do not question the significance of free ... press ... to the country's welfare."); Mills v. Alabama, 384 U.S. 214, 219 (1966) ("Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve."); see also U.S. Const. amend. 1. Photojournalism is key to facilitating the press's effective reporting of newsworthy events. Pictures, whether used to depict news events as they actually happen, to illustrate news that has happened, or to help explain anything else of public interest, are indispensable to the press's fulfillment of its responsibility to keep the public accurately informed. Simply put, pictures help all people better understand any subject in the public domain.

 

Photojournalism, therefore, plays a crucial role in the proper functioning of our society. By providing visual images of newsworthy events, press photographers enhance both the quality and effect of news-reporting, thereby enhancing both the quality and effect of the dialogue among citizens that news-reporting engenders. "[A]nd since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgment of' a photojournalist's ability to do his or her job "cannot be regarded otherwise than with grave concern." Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936). Thus, when taking pictures of or filming newsworthy events, a photojournalist is fulfilling the important constitutional function of providing for "an informed citizenry[, which] is the basic ideal upon which an open society is premised. Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (internal quotation marks omitted).

 

Because of the importance of the press, the Supreme Court has recognized that newsgathering is entitled to constitutional protection. See Branzburg, 408 U.S. at 707

 

("[N]ewsgathering is not without its First Amendment protections ); id. at 681 ("[W]ithout some protection for seeking out news, freedom of the press could be eviscerated."). Nonetheless, whatever special protection the press's newsgathering activities are entitled to, it is clear that the protection "does not guarantee the press a constitutional right of special access to information not available to the public generally." Pell v. Procunier, 417 U.S. 817, 833 (1974); see also Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978); Saxbe v. Wash. Post, 417 U.S. 843, 850 (1974). If the public can be excluded from access to information controlled by the government, then so can the press.

 

This principle of equal access to government controlled information, however, must remain flexible "in order to accommodate the practical distinctions between the press and the general public." Houchins, 438 U.S. at 16 (Stewart, J., concurring). After all, the press and the public do not seek information with the same goal in mind. While a private individual will often seek information "for his own edification[,]" a member of the press "gather information to be passed on to others, and his mission is protected by the Constitution for very specific reasons." Id. at 17. From a freedom of the press perspective, therefore, it is adequate to grant a private individual access to NJ TRANSIT property while prohibiting photography by that person, for he "can grasp its reality with his own eyes and ears." Id. A photojournalist, on the other hand, does not have equal access to NJ TRANSIT property if he is prohibited from taking pictures, because his sole goal in accessing the property "is to convey [its] sights ... to those who cannot personally visit" it. Id. In other words, banning photography by photojournalists who have not given NJ TRANSIT prior notice of intent to photograph places the press on unequal footing with the general public. The First Amendment does not permit such discrimination.

 

As shown by the proposed rule's exceptions for photography by journalists and by otherwise authorized individuals, the rule's drafters were conscious of the special needs of the press. The proposed rule exempts "[w]orking journalists ... [who] are expected to notify the NJ TRANSIT Press Office ... of their intention to engage in photography in or on NJ TRANSIT facilities or equipment."(footnote 11) Unfortunately, these two exceptions do not cure the fundamental constitutional problems with the rule.

 

First, news photographers cannot predict when breaking news will occur and, when news does break, may be unable to notify NJ TRANSIT in sufficient time to be permitted to photograph the news event while on NJ TRANSIT property. Although the proposed rule states that "[a]n NJ TRANSIT Press Office representative is available 24 hours a day,"(footnote 12) it is hardly sufficient to permit journalists to take photographs after a breaking news event has occurred if they are forbidden to take photographs of an event as it occurs. Under the proposed rule, photojournalists will be completely precluded from covering stories that break in the NJ TRANSIT system. Any photography permitted by the proposed rule would be limited to nonbreaking stories that are potentially of less public importance.

 

Second, even with the exceptions, the proposed rule is a prior restraint on newsgathering that creates the opportunity for an NJ TRANSIT official to deny permission to photograph if he or she disapproves of a story, a media outlet, or an individual photojournalist, with absolutely no mechanism for appeal of such a denial. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975) (characterizing as prior restraints laws that give "public officials the power to deny use of a forum in advance of actual expression"). As written, the proposed rule permits working members of the press to photograph on NJ TRANSIT property only if they first notify NJ TRANSIT of their intent to photograph. This rule operates as a prior restraint for two reasons. First, in the case of breaking news, it would be impossible to notify NJ TRANSIT before taking photographs, and the photographs would therefore be automatically prohibited. Second, even in the case of non-breaking news, the obligation to notify NJ TRANSIT in advance of news photographic activities would give NJ TRANSIT the unwarranted ability to control or impact the news coverage, or to exclude the photographer altogether. These prior restraints on protected First Amendment activity, like all rules requiring individuals to obtain government sanction before exercising their First Amendment rights, are accompanied by a "heavy presumption against the [restraint's] validity..." Forsyth County v. The Nationalist Movement, 505 U.S. 123, 130 (1992) (emphasis added).

 

Prior restraints may be permissible, but only if the discretion of the official charged with authorizing the protected activity is sufficiently limited by "narrow, objective and definite standards..." See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969). In Shuttlesworth, the municipal ordinance at issue permitted denial of a license for a parade or public demonstration if "public welfare, peace, safety, health, decency, good order, morals or convenience" called for denial. Id. at 150. The Supreme Court held that these standards granted city officials too much discretion for the ordinance to survive First Amendment review. Id. By comparison, NJ TRANSIT's proposed rule contains no standards whatsoever to guide NJ TRANSIT officials when handling notifications by photographers of intent to photograph in or on NJ TRANSIT property. Regardless of the intentions of those in control, such a standardless licensing system unavoidably creates the unconstitutional potential for abuse. See Gannett Satellite Info. Network, Inc. v. Berger, 894 F.2d 61, 66 (3d Cir. 1990) ("The particular evil associated with a standardless grant of authority is not so much that it will always be exercised illicitly, but that the ordinary course of litigation will invariably fail to provide an adequate check against the likelihood that, at some point, it will.").

 

B. Freedom of Expression

 

In addition to its protection of the press's newsgathering activities, the First Amendment protects expression by all photographers, whether photojournalists or not. Although legitimate restrictions on expression may be permissible where necessary to serve a compelling state interest, and where narrowly tailored to serve that interest, NJ TRANSIT's proposed rule restricts too substantially the right to take pictures on NJ TRANSIT property. The proposed rule is not narrowly tailored because NJ TRANSIT's safety, security and commercial interests could be equally well served by a more narrowly drawn rule. The rule would therefore infringe photographers' freedom of expression and violate the First Amendment. This conclusion holds true regardless of the constitutional analysis employed, whether that analysis was designed for reviewing restrictions on pure expression or on expressive conduct.

 

The visual arts, including photography, are expression protected by the First Amendment. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995) (recognizing that the First Amendment protects the "painting of Jackson Pollock"); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952) (holding "that expression by means of motion pictures is included within the free speech ... guaranty of the" First Amendment). Just as the First Amendment protects the newsgathering process in addition to the final news report, it protects both publication of visual art and the process that culminates in a piece of visual art. See Amato v. Wilentz, 753 F. Supp. 543, 562 (D.N.J. 1990), rev'd on other grounds, 952 F.2d 742 (3d Cir. 1991) (holding that state action prohibiting the filming of a movie violated the First Amendment); cf. Gannett Satellite Info. Network, Inc. v. Berger, 894 F.2d 61, 69 (3d Cir. 1990) (holding that "[t]here is no question that" a regulation restricting the sale of newspapers burdens free expression). It is not just photographs that are protected expression, therefore, but also the act of taking a photograph - the very step in the expressive process that the proposed rule will prohibit.

 

1. The Proposed Rule Does Not Survive Review Under the First Amendment Public Forum Analysis.

 

a) For Photography Purposes, NJ TRANSIT's Stations are a Limited Public Forum.

 

When a regulation is directly aimed at pure expression, such as photography, the extent to which the government may regulate the expression varies with the character of the forum in which the expression occurs. Id. The Third Circuit recognizes four types of fora, with a descending level of First Amendment protection associated with each: traditional, designated, limited, and nonpublic. See Whiteland Woods, L.P. v. Twsp. of West Whiteland, 193 F.3d 177, 182 & n.2 (3d Cir. 1999). The Third Circuit has determined that government property qualifies as a limited public forum if the "government [has] open[ed] a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain kinds of subjects. Kreimer v. Bureau of Police, 958 F.2d 1242, 1246-47 (3d Cir. 1992). NJ TRANSIT has long permitted photography on its property, and it is, therefore, likely that a court would conclude that photography is sufficiently appropriate to certain NJ TRANSIT property - including subway stations - to render the property a limited public forum.

 

b) Banning Photography Will Not Enhance Either National Security or Passenger Safety.

 

Because the proposed ban of photography on NJ TRANSIT property is a content neutral regulation of expression in a limited public forum, see Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (reasoning that a "regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others"), it is constitutional only if it regulates the time, place or manner of expression, is narrowly tailored to serve a significant governmental interest, and leaves open ample alternate channels of communication, id. The proposed rule does serve a significant governmental interest - the safety and security of public transportation passengers. And it does regulate just the place and manner of expression. In the end the rule fails, however, because it is not narrowly tailored to serve the governmental interest and does not leave open adequate alternative channels of communication for photographers.

 

To satisfy the narrow tailoring requirement, the proposed rule must "promote[] a substantial government interest that would be achieved less effectively" without the rule, United States v. Albertini, 472 U.S. 675, 689 (1985), and it must not "burden substantially more speech than is necessary to further the government's legitimate interests." Ward, 491 U.S. at 800. In short, NJ TRANSIT's proposed ban of photography will not achieve its goals any more effectively than a rule that permits photography. Presumably, the rule was proposed to address either a national security related interest in preventing intelligence gathering by would-be terrorists, or a traditional passenger safety concern by preventing activity that obstructs the freeflow of passengers through NJ TRANSIT property.

 

If NJ TRANSIT is seeking to promote a national security interest with the proposed rule, banning all unauthorized photography will not achieve this goal. It is well known that modem cameras and other photography equipment are easily concealed from detection in cell phones, clothing, bags, or other items. Implementation of the proposed rule, therefore, is more likely to result in the NJ TRANSIT penalizing legitimate photographers for exercising a protected First Amendment right than in the prevention of terrorist attacks on the New Jersey transit system.

 

Moreover, by banning all photography on NJ TRANSIT property by unauthorized individuals, the proposed rule will substantially burden more protected First Amendment activity than is necessary to NJ TRANSIT's national security goal. Namely, photojournalists who, because of the fast-breaking nature of news, do not have time to contact NJ TRANSIT's Press Office will be less likely to respond to news events that occur on NJ TRANSIT property for fear of facing a criminal or civil penalty. The First Amendment does not tolerate such an unnecessary burden, even in the name of legitimate state interests.

 

If, on the other hand, the NJ TRANSIT is seeking to promote a more traditional passenger safety interest by preventing the obstruction of passenger movement through NJ TRANSIT property, banning all unauthorized photography will not achieve this goal either. Most photography is, at most, only minimally disruptive to the surrounding environment. Because cameras generally are handheld and compact, they do not obstruct the free movement of passengers through NJ TRANSIT property.

 

NJ TRANSIT's proposal also includes a provision that would restrict the use of tripods, lighting, or other specified photographic equipment by non-commercial photographers. A restriction on the use of these devices, which can, in many instances, compromise passenger safety, is undoubtedly appropriate in a public transit system. However, the proposed rule fails to recognize that the use of this equipment does not always create a safety risk, and therefore does not allow its use under circumstances in which it would not create a safety risk. By prohibiting all photography, regardless of its likelihood of endangering passengers, the proposed rule will "burden substantially more" expression than is necessary to accomplish NJ TRANSIT's goal. Ward, 491 U.S. at 799-800.

 

c) The Proposed Rule Does Not Leave Open Any Alternative Means for Photographing on NJ TRANSIT's Property.

 

Finally, to be constitutional, a time, place, or manner regulation must leave open adequate alternative channels of communication that permit the same type of communication regulated by the rule. See Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976). The proposed rule will survive this element of the First Amendment analysis only if NJ TRANSIT leaves open adequate alternative options for photographing NJ TRANSIT property. As it is currently drawn, however, the proposed rule provides no such alternative means. To the contrary, the photography ban applies to all NJ TRANSIT property, whether used for direct public transportation services or not, thus leaving no means for an unauthorized photographer to take pictures or film in or on NJ TRANSIT property. And the authorization process itself is not an adequate alternative channel of communication because, as explained, it does not sufficiently protect First Amendment interests.

 

2. Even If Reviewed Under the More Lenient O'Brien Analysis, The Proposed Rule is Unconstitutional.

 

Even if reviewed under the more lenient standard applied to regulations of expressive conduct, rather than pure speech, the proposed rule violates the First Amendment. In United States v. O'Brien, 391 U.S. 367, 377 (1968), the Supreme Court established the test for determining the validity of a regulation of expressive conduct:

 

[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

 

Id. In practice, though, so long as the regulation at issue is content neutral, the O'Brien standard "in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions." Clark v. Community for Creative Non- Violence, 468 U.S. 288, 298 (1984). Consequently, because the proposed rule fails the time, place, or manner restriction analysis, it is unconstitutional under the O'Brien expressive conduct analysis.

 

The press is crucial to the proper functioning of our society. It is a vehicle for creating an informed public, and an informed public is the most effective safeguard against mismanagement of government. NJ TRANSIT's proposed photography ban will significantly hinder the press's ability to report on newsworthy events that occur on NJ TRANSIT property. And when reviewed against the requirements of the First Amendment, the ban itself is unconstitutional. The proposed photography ban should be rejected, and photography should continue to be permitted in the New Jersey public transportation system.

 

Respectfully submitted,

 

Bruce W. Sanford

Robert D. Lystad

Baker & Hostetler LLP

1050 Connecticut Avenue, NW #1100

Washington, DC 20036 US

202-861-1707

Counsel for the Society of Professional Journalists

 

Kurt A. Wimmer

Robert M. Sherman

Covington & Burling

1201 Pennsylvania Ave., NW

Washington, DC 20004 US

(202) 662-6000

Counsel for the National Press Photographers Association

 

Kathleen A. Kirby

Wiley Rein & Fielding

1776 K Street, NW

Washington, DC 20006 US

202-719-3360

Counsel for the Radio-Television News Directors Association

 

Lucy Dalglish

Reporters Committee for Freedom of The Press

1815 N. Fort Myer Drive, #900

Arlington, VA 22209 US

703- 807-2100

Counsel for the Reporters Committee for Freedom of the Press

 

=================

 

Footnotes:

 

1 The National Press Photographers Association is a non-profit professional organization dedicated to the advancement of photojournalism, its creation, editing and distribution, in all news media. The NPPA vigorously promotes freedom of the press in all its forms. The NPPA's more than 10,000 members include still and television photographers, editors, students and representatives of businesses that serve the photojournalism industry.

 

2 The Radio-Television News Directors Association is a professional association devoted to electronic journalism. The RTNDA's more than 3,000 members include local and network news executives, educators, students, and others in the radio, television, cable and other electronic media worldwide.

 

3 The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedoms of information interests of the news media. The RCFP has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970.

 

4 The Society of Professional Journalists is dedicated to improving and protecting journalism. It is the nation's largest and most broad-based journalism organization, dedicated to encouraging the free practice of journalism and stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta Chi, the Society promotes the free flow of information vital to a well-informed citizenry; works to inspire and educate the next generation of journalists; and protects First Amendment guarantees of freedom of speech and press.

 

5 37 N.J. Reg. 1501 (a) (2005) (proposing amendment to N.J.A.C. 16:83-3.1(27)).

 

6 Id. (proposing amendment to N.J.A.C. 16:83-3.1(28)).

 

7 Id. (proposing amendment to N.J.A.C. 16:83-3.1(29)).

 

8 Id. (proposing amendment to N.J.A.C. 16:8 3 - 1. 1 (b)).

 

9 Id. (proposing amendment to N.J.A.C. 16:83-1.2).

 

10 Id.

 

11 37 N.J. Reg. 1501(a) (2005) (proposing amendment to N.J.A.C. 16:83-1.1(b)).

 

12 id.

 

=============

 

Peter Blaise responds:

 

I LOVE the deep and relevant research and carefully based and balanced opinions shown above.

 

EXCEPT:

 

1 - PERMISSION versus PROHIBITION:

 

Permission = "giving" photographic rights as if THEY had the rights to dispense the right to photograph, as if we did not already have the right to photograph without their permission!

 

Versus

 

Prohibition = their limiting or controlling our photographic rights, understanding that photographic rights are already and always ours to begin with.

 

So, I do not like the very last line:

 

"...photography should continue to be permitted in the New Jersey public transportation system..."

 

Which I would change to:

 

"...photography should continue to not be prohibited in the New Jersey public transportation system..."

 

No body "permits" me to photograph -- it's my native right as a human to photograph -- I was BORN with such rights.

 

I believe we already HAVE the right to photograph just by being alive, as we have the right to think, speak, write, listen, create, and so on.

 

2 - PROPERTY:

 

I see a failure to explore COPYRIGHT ownership of the photographs taken, and the inappropriateness of anyone thinking they can confiscate our cameras or our pictures regardless of where or when we took them. The failure to clearly identify photography, the process, and photographs, the resulting materials and images, as the unalienable PROPERTY of the PHOTOGRAPHER! Though this was not within the scope of the original target above, I think it is appropriate now to expand it to make it all purpose.

 

3 - TAKING versus PUBLISHING:

 

They did cover a bit of the difference between taking a picture and publishing a picture, even heralding the importance of unrestricted publishing, including total prohibition on prior restraint -- the evils of censorship. I think this should be strengthened for the general public to understand that they can sue afterwards if they feel offended, but they cannot prohibit taking, making or publishing a photograph beforehand.

 

-----------------------

 

Well, otherwise, the above quote from Bruce W. Sanford, Robert D. Lystad, Kurt A. Wimmer, Robert M. Sherman, Kathleen A. Kirby, and Lucy Dalglish seems quite exhaustive. Perhaps we should contact these authors and ask them to either re-write and / or re-publish it as a street hand out, or give us permission to co-opt it heavily for that purpose. Then whenever anyone of us gets accosted, we can hand our oppressors this little brochure that asks them to think about what they are doing. I know I plan to distribute it to the bosses and decision makers in authority above any police or security guard who hassles me when I photograph.

 

What say you all?

 

Click!

 

Love and hugs,

 

Peter Blaise peterblaise@yahoo.com http://www.peterblaisephotography.com/

 

Spread the word:

 

PHOTOGRAPHY IS FREE SPEECH!

 

===================

 

Earlier in this thread: some of us include hidden links which do not get printed for those of us who read this on paper. Here are some missing links:

 

"Call me an old Fourth Amendment ...

 

http://www.law.cornell.edu/constitution/constitution.billofrights.html

 

... fuddy duddy. I still say that seizures of the sort alleged here should be based upon probable cause.

 

... I'd say that photo.net may be a good place to come to commiserate, discuss, and blow off steam, but this office...

 

http://www.aclupa.org/

 

...is the better place to call to inquire as to: (i)whether your rights may have been violated; and (ii)whether you may have recourse..."

 

Click on! ;-)

 

====================

 

PS - The Magna Carter is just one more thought piece and basis for getting on the same page, so to speak, when we discuss rights, and conflicting right, and how to decide who wins when there is a conflict. Don't read it if you don't want to, but don't think that age itself is a disqualifier on an idea. I mention it as a non-US reference. I can also mention pre-US precedents for respecting each other's creativity -- the Algonquian and other "Native American Indians" had many traditions that inspired the "founding fathers" more so than the Magna Carter side of the Atlantic did! How long can we make this thread? ;-)

[bill_thorlin]

Things will only get better when enough people want them to get better and only then if they act.