Taking Pictures in Public

North Coast Journal Editor Carrie Peyton Dahlberg talked with Mickey H. Osterreicher, general counsel for the National Press Photographers Association, about taking pictures in public. Here is a condensed version of that conversation.

North Coast Journal: You trained police in Tampa and Charlotte before the Republican and Democratic conventions in 2012 and also in Chicago before the NATO Summit. What did you tell them about photography?

Osterreicher: The key messages are that both the press and the public have a right to photograph and record police performing their official duties in public. Period. If you are in a public place and you can observe something, you can photograph and record it as well. You don’t need anyone’s permission.

Either police learn and respect that right, or they will end up getting sued. And for the most part, in the cases I’m aware of, they lose.

NCJ: What were the results of that training?

Osterreicher: In Tampa and Charlotte, for the first time since 2000, we had no arrests of journalists at either political convention. What’s really important for police departments is that leadership come from the top. [The chiefs] were out on the street with their men and women, directing and supporting them. The police took that cue and behaved appropriately.

In the 2008 conventions, we had a number of journalists arrested. Once those charges were dismissed, they brought federal civil rights lawsuits. It cost Denver and St. Paul $100,000 and $200,000.

NCJ: So proper training saves the public money?

Osterreicher: I look at it as a win-win-win. It’s win for the press. They don’t get harassed; they get to do their jobs. It’s a win for police. They’re upholding the Constitution and they don’t get sued. And it’s a win for the public because they get information.

NCJ: What should police never tell a photographer?

Osterreicher: “Because I said so.” It works for your mother. But for a police officer, there has to be some basis in law to order you to do something. When they start making it up, that’s when they get in trouble.

NCJ: What’s the legal basis for saying police can’t interfere with photography?

Osterreicher: The First Amendment guarantees freedom of press and freedom of speech. You cannot have someone telling you that you can’t shoot pictures and gather news in a public place. It’s a prior restraint. As member of the public, it abridges your free speech rights, because photography and recording are acts of expression, and you have a right to free expression.

The press may not have any greater right than the public, but they certainly have no less right. If you’re allowing the public to walk by, you can’t just because someone has a camera in their hand, treat them differently. That would be where the 14th Amendment applies. You can’t apply the law differently. If the public has access, then someone with a camera has access.

NCJ: Are there any additional rights or restrictions under California law?

Osterreicher: California law has a section which basically says that journalists are allowed to enter areas that are generally closed to the public during disasters.

NCJ: What are some of the things that police can tell a photographer without violating anyone’s rights?

Osterreicher: Police can certainly make polite requests. They can say, excuse me, those are undercover officers, we’d appreciate it if you don’t photograph them. Or the family hasn’t been notified yet, please don’t take pictures that would identify the victim. Or, I know you’re in a public place, but could you please move back a few feet for your own safety.

And photographers don’t have carte blanche to walk through a crime scene. If police set up a perimeter, photographers have to stay back with the rest of the public.

 NCJ: Some commenters on our website have suggested that police or others in public have a privacy right, and can say no to pictures. What can you tell us about that?  

Osterreicher: I love this one. The Seventh Circuit addressed it in another case (ACLU v. Alvarez). It was just decided less than a year ago. In Illinois there was a law that you cannot record an officer without his permission and if you were convicted, you’d be subject to 15 years in jail.  

The ACLU challenged that law and it was struck down. Here’s the distinction. When you’re out in public, you have no reasonable expectation of privacy. It’s what distinguishes public from private, which is the reason why there are surveillance cameras and we are recorded hundreds of times a day. It’s nonsense for anyone to come up to you and say you don’t have permission to take my picture and you have to stop.

NCJ: We’ve also heard it said professional photographers know they aren’t supposed to take pictures of evidence. As someone who has worked as a professional photographer yourself, have you ever heard of that?

Osterreicher: Not only have I never heard it, it’s probably one of the more absurd things I’ve ever heard.  

NCJ: Beyond the kind of in-person training that you provide, what other materials are available for police departments that might want to improve officers’ knowledge about photography rights?

Osterreicher: I’ve got a compilation of model guidelines. But really, guidelines are one thing. After the guidelines you have to have training. And the third component of that is you have to have discipline. If officers violate the guidelines, and get a wink, nothing is going to change.

NCJ: In that context, of the message needing to come from the top, the city of Eureka is about to begin a national search for a new police chief. What should this city be looking for in its next chief?

Osterreicher: Somebody who, when the officer takes an oath to uphold the Constitution, not only says that when they’re sworn in but lives it every day.

NCJ: What tips can you offer for police and the press to work together to ensure both public safety and the free flow of public information?

Osterreicher: Have meetings. Sit down and talk about these issues. Don’t wait until the police are busy dealing with situations and the press is busy covering them. Do it before all of that happens, so there is a clear understanding and respect of what both the officers and the press do.

This article appears in Beasts and Children.