Magazine article The News Media and the Law (Online)

Ferguson and the Right to Photograph Police

Magazine article The News Media and the Law (Online)

Ferguson and the Right to Photograph Police

Article excerpt

Protesters march on Nov. 23 in St. Louis, before the grand jury returned a decision.

While the country awaited a grand jury decision in Ferguson, Missouri, in late November, the protests following the death of Michael Brown in August served as an early reminder that members of the press can often be swept up as part of the story they are covering. As journalists vigorously covered the public unrest, many found themselves harassed or placed under arrest simply for engaging in the activity of filming or photographing the police activity around the protests. Some had guns pointed at them, and others were held overnight.

These events, as the Reporters Committee later wrote in a letter to local and state law enforcement groups on behalf of a media coalition, were "anathema to the First Amendment and to journalists everywhere." Courts have repeatedly held that the right to photograph police in the public performance of their duties is protected by the First Amendment. But it is still a regular occurrence for those who attempt to do so to be the targets of reprisal by the local law enforcement officers they are trying to monitor. Whether deficient training or heat-of-themoment impulses are to blame, these reactions are almost predictable, and it is imperative that photojournalists know their rights. On the heels of several appellate court decisions and a recent Justice Department proclamation that the right to film the police is guaranteed by the Constitution, these rights have never been clearer.

(The Reporters Committee also released a guide on this topic, "Police. Protesters and the Press." in 2012.)

Typically, those who wish to sue law enforcement officials over harassment for filming or photographing rely on a federal statute, 42 U.S.C. §1983, which was enacted in 1871 to enforce the 14th Amendment. Section 1983 provides a private cause of action for the violation of constitutional civil rights by government actors who are acting in the scope of their employment.

Media plaintiffs usually sue under Section 1983 alleging violations of their First and Fourth Amendment rights. The First Amendment is implicated because it protects the right to speak on matters of public concern, and courts have widely held that police misconduct is a matter of public concern. The Fourth Amendment is often raised because of the unreasonable searches and seizures that take place when those who film are harassed, arrested, and have their cameras confiscated.

Courts acknowledge that these First Amendment rights can be subject to reasonable time, place, and manner restrictions. Thus, police have the right to protect themselves against actual interference with the performance of their duties.

The government defense that tends to doom many Section 1983 suits concerns qualified immunity. State actors are only liable for violations of constitutional rights that are "clearly established." If there is no controlling or persuasive authority recognizing the right, the police have qualified immunity against suit under Section 1983 for their actions that violated the plaintiffs constitutional rights. The right must be established "beyond debate," and courts examine whether a reasonable person in the government actor's position would have known that he was violating clearly established rights.

A clearly established right

Several appellate courts that have addressed the issue of whether the right to film the police is protected under the First Amendment have emphatically ruled yes. In Glik v. Cunniffe in 2011, the First Circuit held that "a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and wellestablished liberty safeguarded by the First Amendment." The Glik court pointed to the very brief discussions of other courts regarding the right to show that it was, indeed, "self-evident." In ACLU v. Alvarez in 2012, the Seventh Circuit likewise held that filming the police should be recognized as a longstanding right. …

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