PRIOR RESTRAINT ON PHOTOGRAPHIC NEWSGATHERING: PRECLUSION OF ACCESS PRECLUDES PUBLICATION

by Jeff Davis


Consider the plight of Tantalus, a mythical Greek king and son of Zeus who revealed certain information the gods wanted to keep secret. The punishment divined for his transgression involved standing in a pool of fresh water for eternity, which flowed away each time he bent over to drink from it. Branches thick with fruit tempted him, only to move out of reach each time he stretched for it. The word tantalize is the legacy of this Greek king, "To tease or torment by presenting something desirable to the view but continually keeping it out of reach."


Now consider the photojournalist, a reporter who conveys information not through words, but through images. Many news events, from routine items like traffic accidents and scheduled meetings of governmental bodies to dramatic cases of enormous tragedy are routinely excluded from photographic newsgathering, usually by law enforcement officials. These photographers, whose professional reason for being is to document visually what occurs in life, are tantalized by sometimes being prevented, on a regular basis, from documenting what is happening in their communities.


Reporters whose dispatches are written or spoken have the opportunity to use second-hand information while covering a story. If the reporter was not an eye witness to the event, a credible and complete report can be compiled through interviews and exchange of information.
Photojournalists don't have this luxury. By necessity, the photojournalist must actually view the scene, as the event happens, to gather the news product before distribution of the information is possible. For the ethical news organization, there are no re-takes on news events. Henri Cartier-Bresson, a pioneer photojournalist who has shaped the field described it:


"But for photographers, what has gone, has gone forever. From that fact stem the anxieties and strength of our profession. We cannot do our story over again once we've got back to our hotel. Our task is to perceive reality, almost simultaneously recording it in the sketchbook which is our camera."


Journalism has been described as "the first draft of history," and as such the historical record will be entirely incomplete whenever a photographic record does not exist. Edward Steichen was in charge of the U.S. Navy photographic unit during World War II, an element that produced over a million negatives of the Navy's effort during the war. Steichen observed:


"Any photograph that is made—the very instant it is completed, the very instant the button is pressed on the camera--becomes a historical document. Its use as such will depend largely on historians."


(In a cruel twist, almost the entire collection of these Navy photographs has never been seen. The unit carefully packaged, cataloged and cross referenced the negatives, shipped them to Washington, D.C., and they have never been seen since.)


A 1936 farm labor dispute in Salinas, California received extensive photographic coverage from newspapers and newsreel companies. A historian later noted:


"But perhaps the most lasting legacy of the Salinas images was the way they verified the importance of on-the-spot news photography. . . . The function of news photographers at Salinas had simply been to provide the look and feel of events the public could not witness, and what print reporters, no matter how fluent, could never hope to adequately convey."


The issue of personal feelings and the photographer's desire to do his/her job are not important; this is not an attempt to make life easier for news photographers because they are frustrated by not getting their way wherever they go. A larger issue is raised due to the unique requirements of access necessary for photographic documentation of the news. If photographers are arbitrarily denied access to newsworthy events, there is nothing to publish. If there is nothing to publish, government officials (the police impeding access) have essentially imposed a prior restraint on publication--not in the same vein as the classic Pentagon Papers case, but in a more subtle, before the fact fashion.


In short, unnecessary restrictions placed on photographic newsgathering are a form of prior restraint.


There has always existed an adversarial relationship in this country between the government and the press. Thomas Jefferson's famous thought on the press, "Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter," did not prevent him from complaining bitterly about the press when he served as president.


Illustrating news events has been important ever since the technology to accomplish illustration existed. Prior to the advent of photography, newspapers illustrated news stories with woodcuts, produced as an artist's view of an event he witnessed, or an interpretation from a witness or news account.


After the invention of photography, editors quickly realized the value of photographs to document the news. Due to the mechanical nature of the photographic process, news photos would be accepted and believed as an accurate view of a distant event.


Film maker Andre' Bazin saw the development of photography as a radical event in history:


"The objective nature of photography confers on it a quality of credibility absent from all other picture-making. . . . Between the originating object and its reproduction there intervenes only the instrumentality of a nonliving agent. For the first time an image of the world is formed automatically, without the creative intervention of man."


Starting in 1842,woodcuts were made using photographs as a source, and on March 4, 1880 the New York Daily Graphic published a photograph of a squatter's camp using the halftone process. This technological innovation, still used today, permits the accurate reproduction of photographs at high speed by turning continuous-tone photographs into a series of dots.
Television's evolution over the last 50 years from World's Fair oddity to ubiquitous presence has increased the importance of image-dependence of news coverage. The needs for the visual news gathering processes of television and still photography are, for the most part, identical. There are some differences, but for the purposes of this discussion, photography refers generally to both print and television imaging.


There are certain situations where photographic newsgathering is strictly controlled, and are not germane to this discussion. The issue of cameras in courtrooms, both at the state and federal levels, is a separate topic, and will be touched on only to state that there has been an incredible increase of photographic coverage nationwide in courtrooms in the last ten years, with no adverse effect on the court system. In addition, restrictions on photographing military installations and activities, as covered by parts of the Espionage Act (18 U.S. Code section 795) and related acts will not enter into the discussion. These laws are very specific, usually relating to military installations, and while they are tangential to this issue, they are nonetheless outside the scope due to unique distinctions in the law.


When speaking with working photojournalists, anecdotal reports indicate that police agencies at all levels, acting either independently or at the direction of other government officials, habitually work to prevent access to news situations to photojournalists.


News Photographer magazine, the journal of the National Press Photographers Association (NPPA), routinely caries stories of photographers who have been arrested while attempting to cover news events. In a survey of the last five years of the monthly publication, over 50 cases of arrest were documented in the magazine. The NPPA is the largest group of professional photojournalists in the U.S., with over 8000 members, but this reporting of arrests cannot be considered complete for a nationwide total, which is unknown.


A survey in 1987 reported that 24% of the working photojournalists responding had been barred from an open governmental meeting, and 6% had been arrested for crossing a police line. In an interesting breakdown, the author reported that male photojournalists were more often barred from government meetings than were female photojournalists, and that television photographers were kept out of meetings most often. This strengthens the argument that denial of access is arbitrarily applied.


Three examples of the problem: two photographers were arrested on April 21, 1993, as they looked to find a vantage point to photograph the Branch Davidian compound in Waco, Texas two days after it burned to the ground. The pair, both veteran photographers, from the Associated Press and the Houston Chronicle, reportedly did not cross any police line, resist arrest or fail to cooperate in any way. They were arrested at gunpoint, held incommunicado for over eight hours, their film was confiscated without a search warrant or subpoena, and were required to post the maximum bond after being charged with a misdemeanor offense. It can only be concluded that officials were sending a message to other photographers in the area to comply with restrictions, regardless of their legality or rationality.


In Iowa, when a corporate plane crashed near Dubuque in April, 1993, killing the governor of South Dakota and seven other people, law enforcement officials removed news photographers from the scene as soon as they were identified as news photographers, permitting them an access point only if they stood on a public highway some three-fourths of a mile from the scene. Even when the photographers had permission from adjacent landowners, and were more than 300 yards from the scene using telephoto lenses, they were removed under threat of arrest. And while professional photojournalists were prevented from recording the activity, neighbors of the farm where the crash occurred were allowed to remain on the scene, sometimes standing within the crash site, and were not prevented from taking photographs.


One state Senator in the Iowa Legislature tried to ban the use of telephoto lenses by photographers covering the Senate chamber in 1993. The Senate already severely limits the locations photographers may shoot from, and the Senator rationalized his proposal by saying that he didn't think someone should be photographed without their knowledge, and that "it's disruptive." He did not explain how it would be disruptive for someone to be photographed without their knowledge, but he did equate the ban on telephoto lenses to the already existing ban on flash equipment.


That actual arrests are not more common relate to the common sense of most photographers who will go to great lengths to avoid arrest, and when confronted with the threat of arrest will back down or find some other way to cover the event. The conventional thinking in newsrooms is that if a photographer is arrested, he/she was not effectively doing the job. As a result, police routinely, and as we will see wrongly, deny access to working photojournalists at newsworthy events.


The fact that some journalists (reporters) are admitted, while other journalists (photographers) are excluded, or when photographers are excluded from areas where members of the public are allowed, is evidence that photojournalists are being prevented from exercising a specific civil right--the First Amendment right to engage in the freedom of the press. The U.S. Supreme court has not provided us with definitive rulings on the issues presented here, but a case can be complied from some Court rulings, and by a collection of cases from lower courts.
We will see that courts have:

1) Determined that the loss of First Amendment freedoms results in an irreparable injury to an individual.

2) Newsgathering does have limited First Amendment protection.

3) Newsgathering, when protected under the First Amendment, cannot be arbitrarily restricted due to type or category of media.

4) Government officials cannot seize the work product (film or video tape) of news photographers.

5) Law enforcement officials cannot assault photographers to prevent them from engaging in news gathering.

6) Restricting photographers from locations where the public or other journalists are allowed is not permissible.

In short, journalists have a right to gather the news, news photographers are journalists, and news photographers cannot be excluded because they report with a camera instead of a pen. News photographers should not be physically prevented from doing their job, and when their work product, in the form of film or videotape is seized, the government official seizing the film is preventing publication.


To support the specific links in the chain, we first turn to a 1976 case, Elrod v. Burns, a labor dispute involving the Cook County Sheriff's office, where the Court held:


"It is clear therefore that First Amendment interests were either threatened or in fact being impaired at the time relief was sought. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."


While this was not a press case, it is clear that the Court is cognizant of a time factor when dealing with First Amendment issues. In addition, this case is often cited in press cases to support the concept of irreparable harm.


The arrow of time cannot be restrung if a court later determines an error was made. And while the press freedom issue is paramount and immediate in this concern, part of the "irreparable injury" is the loss of historical documentation resulting from this type of control.


The Court has also explicitly stated that the press has a limited First Amendment right to gather the news. In Branzburg v. Hayes Justice White said in the Court's opinion:


"We do not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated."


In Richmond Newspapers v. Virginia Justice Stevens in a concurring opinion said,


"Today, however, for the first time, the Court unequivocally holds that an arbitrary interference with access to important information is an abridgement of the freedoms of speech and of the press protected by the First Amendment. . . . I agree that the First Amendment protects the public and the press from abridgement of their rights of access to information about their government."


There has been a longstanding battle over what protection should exist for the press, and where the limits are for newsgathering. In this paper, we are concerned with limits that are understood to be fairly settled: access where the public is permitted, access where other news media representatives are allowed, and reasonable access to newsworthy events (accidents, crimes and disasters, for example).


The last situation has the most tenuous base, and this is not a call for unlimited access to plane crash sites or crime scenes for photographers. Officials have a necessary and legitimate basis for protecting crime and accident scenes, or preventing injuries at a chemical spill, for example. However, it is becoming increasingly common for police officials to deny any access to scenes, and to remove photographers to locations where any type of newsgathering is impossible.
There have been many cases where officials have attempted to restrict access to certain reporters or media outlets that they, for some reason, disapprove of. These cases have routinely been settled in favor of the media.


The Quad City Community News Service was a so-called "underground newspaper," and was an irritant to the police department in Davenport, Iowa. The police denied a reporter from the paper access to police department records that were routinely available to other media outlets. The U.S. District Court held in 1971 that this was an obvious denial of equal protection.


"No showing merely of a rational relationship to some colorable state interest suffices to justify a classification between media permitted access to the reports and others which are not so permitted. Any classification which serves to penalize or restrain the exercise of a First Amendment right, unless shown to be necessary to promote a compelling governmental interest is unconstitutional." [Emphasis in original]


While officials cannot discriminate based on the type of media outlet, neither can they dictate individuals from those media outlets that they will admit to open meetings.


In a 1973 case, Borreca v. Fasi , the mayor of Honolulu prevented a reporter from the Honolulu Star-Bulletin, who had been on the city hall beat for two years, from attending a regularly scheduled press conference in the mayor's office. It was found that there was no reason, other than the mayor's objection to the content and tone of this reporter's stories to exclude him from the press conference. The decision held:


"The limitations that may be placed by state action on this right of access are determined by a balancing process in which the importance of the news gathering activity and the degree and type of the restraint sought to be imposed are balanced against the state interest to be served. Where the First Amendment rights are involved, the asserted state interest must be compelling and the proposed state action must be the least restrictive means available for the asserted government end."


In both these cases, the state must have a "compelling interest" in restricting access to open information or meetings.


While government officials cannot legally restrict access in most cases, neither can they seize film or video tape from a photojournalist after an event has occurred.


A 1989 case in Des Moines, Iowa found that police improperly seized video tape from an individual who had recorded a street fight where a man was fatally stabbed.


The photographer was an amateur who was not employed by any news organization. He was in the 'downtown loop' area intending to photograph and later sell any newsworthy footage to various local television stations. He saw a fight going on, and videotaped the stabbing. After police arrived, he informed them he had recorded the crime, and the police seized the tape as evidence. Lambert said the police repeatedly assured him he would be provided a copy of the tape, and police never produced a search warrant for the evidence. After the victim died that same day, police informed Lambert he would not get his tape back, or a copy of it. That same day Lambert reached agreement to sell the tape to a local television station, and the station joined in the suit to get the tape back.


The decision, handed down just 30 days after the event by the Federal Judge for the Southern District of Iowa has several interesting points.


First, he states that Lambert need not be a professional photojournalist "It is not just news organizations, such as WHO-TV, that have First Amendment rights to make and display videotapes of events--all of us, including Lambert, have that right."


In addition, "There is clearly a threat of irreparable harm to Lambert if he does not promptly get his videotape back. Lambert has a right to use the tape under the United States Constitution. . . . Defendants' refusal to provide him with a copy of the tape threatens him with irreparable harm, which increases with each passing day."


Judge Vietor states that, "Government cannot unlawfully seize property of a citizen in violation of his basic constitutional rights, and then continue the violation by not returning the property. . . . Prior restraint rarely can be accommodated by the Constitution."


Judge Vietor has made the complete argument that for governmental officials to prevent the publication of visual images is unconstitutional prior restraint.


If officials cannot seize film and video tape after it is shot, they also cannot physically prevent news photographers from doing their job.


WSB-TV in Atlanta ran a series of stories in 1988 on allegations that a sheriff had used inmate labor on private construction projects. A physical altercation later resulted between the sheriff and the reporter and cameraman. Most of the decision revolved around the precise rules governing summary judgement, but the last paragraph summed up the issue of restraining newsgathering:


". . . The November 6th incident was but one episode in the ongoing effort of defendant to thwart or impede plaintiffs in gathering and reporting news relating to rumors of the sheriff's use of inmate labor on his private property, an interference with plaintiffs' first amendment rights which would violate 42 U.S.C. sec. 1893."


There are many instances reported in News Photographer magazine, and told by individual photojournalists where police officials have detained photographers for a time, until an event is over, and then released them without charges. Other times police or fire officials have stood in the way, placed hands over lenses, or physical restrained photographers from shooting scenes or events. Clearly, this is an impermissible activity.


Much of the preceding evidence affects news photography by inference--since photojournalism is part of journalism, news photography is also included. A number of cases exist where courts have expressly ruled on the rights of photographers to gather the news.


Schnell v. Chicago was a class action suit by a group of photojournalists who covered the 1968 Democratic convention in Chicago. Officers of the Chicago police department interfered with photographers covering riots in ways ranging from holding them for several hours in the back of squad cars to smashing their cameras and beating them with batons. The seventh circuit court held that,


"There can be no conclusion but that the complaint sufficiently alleges that constitutionally protected activity was and continues to be interfered with by the named defendants and that the defendants have the duty and power to prevent any future interference."


In addition to the interference, the court said that singling out photographers is likewise not permissible, stating that there is "no meaningful difference between news photographers as a class and news media personnel."


Connell v Hudson involved a photographer for a local paper covering a traffic accident in Hudson, New Hampshire. He was forced to move several times under orders from a police officer, finally being literally run off of the street under the officer's harassment. Connell ended up shooting his photos from the second story of a house, with the owner's permission. He was spotted in the window, and ordered not to photograph the scene and to leave the building. When he refused, he was arrested for disturbing the peace.


The U.S. District court was clear in it's conclusion,


". . . The Court declares that David Connell's rights, protected from government intrusion by the First Amendment to the United States Constitution, were violated by the Town of Hudson police when they ordered him to stop taking pictures from positions that did not interfere with police activity."


One of the key factors in these situations is the definition of "interference with police activity." In many cases, photographers can be arrested for an offenses such as Disobeying a Lawful Order. In these cases, when a police officer tells a photographer to do something, whether the order is legal, or even reasonable, the photographer can be arrested for even questioning the order--a classic Catch 22.


This was the case in Leiserson v. San Diego when a passenger jet crashed and a television photographer was found filming the crash site. He was ordered to leave the site, and was pursued and removed to a location where he could not view the crash location. In an attempt to get back to the crash, he was arrested for failure to obey a lawful order of a police officer. The interesting point, and one that was ignored by the trial judge, was that in California news photographers are granted expanded access to crash scenes by statute.


The judge dismissed this argument by saying that the police officers could not be expected to be knowledgeable about an obscure provision in the law. The photographer did not obey the order of the officer because he believed it, rightly, to be not lawful. While the photographer was correct, he was still convicted.


Much the same case was found in State v. Lashinsky, a case in New Jersey where the photographer was arrested and convicted with interfering with a police officer. The conviction was upheld on appeal, but in a stinging dissent Justice Pashman of the New Jersey Supreme Court grabbed the issue by the horns.


"The majority emphasizes that defendant became embroiled in a heated exchange with Herkloz [the police officer] which both directly and indirectly interfered with the carrying out of Herkloz's duties. . . ."


What the majority fails to emphasize, however, is that the argument erupted after and as a direct result of Herkloz's order that defendant move on. A command that is unreasonable when uttered does not become reasonable simply because a newsman will not abide by its terms. . . . In effect, the majority has ruled that a newsman acts illegally if he stands up for his rights and refuses to accede to an arbitrary, and hence, unlawful, request." [Emphasis in original]


We have seen that it is clear that newsgathering is protected, to some degree, by the constitution. In addition, governmental officials cannot restrict the type or method of newsgathering, nor can they restrain photographers if they have been properly admitted at a location or seize their film after the fact. It has also been held for some time that the loss of First Amendment freedoms results in "irreparable injury" to an individual, whether professional or amateur.


This leaves us with a problem. If the outlines of the problem are known, and the law is reasonably settled, why is there still such a problem with governmental interference in photographic newsgathering, and what can be done about it?


Michael Sherer, who teaches in the Department of Communication at the University of Nebraska at Omaha, has published a paper outlining a method using the federal civil rights statute 42 U.S. Code section 1983 to force governmental agencies to respect the First Amendment rights of photojournalists. This section of the code was previously cited in the WSB-TV opinion. Under this section, two essential elements must be present:


"(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States."


The first consideration, acting under color of state law, is easy to meet in most cases of overbroad restrictions. The media is controlled by well established criminal and civil laws when dealing with members of the public. Areas such as trespass and libel have established histories, and these are not areas where prior restraint questions apply. The major problem with restrictions leading to prior restraint enter when photographers are dealing with breaking news or government bodies. In these cases, the people preventing newsgathering and, by extension, publishing, are officials of government, therefore acting under "color of state law."


We have seen where newsgathering, and by extension, news photography, has a limited constitutional protection, and several of the cases previously cited have specifically mentioned the First Amendment rights of journalists being abridged.


The press should become more active in educating law enforcement personnel on the topics we've discussed. I'm not optimistic that this education will be accepted. A secondary form of education is for courts to protect and apply these rights when they have been violated. Chiefs of Police and City Managers will educate their people when courts have brought judgements against them.


Sherer sums it up best:


". . . photographic newsgathering must take place at the scene of breaking news events. Without a right of photographic access, there will be no visual record.
"Getting to the scene of a breaking news story presents a myriad of problems for the news photographer, not the least of which is convincing law enforcement officials of the value of granting news photographers reasonable access to these events. Any means within the law,including using the law itself to help promote and protect a news photographer's right of reasonable access to a newsworthy event, should be considered."


Unfortunately, it will not do a photographer any good to be standing nose-to-nose with a state trooper while an airplane burns over a hill, and try to describe the nuances of constitutional theory and practice. Action on educating governmental officials must be a constant, unrelenting process if photographic access to newsworthy events is to be protected.


Photographs can define events, shape attitudes, and provide a collective memory. But only if someone is there to take them.


LIST OF CASES

Borreca v. Fasi 369 F.Supp. 906

Branzburg v. Hayes 408 U.S. 665

City of Oak Creek v. Ah King 436 N.W. 2d 285

Connell v. Town of Hudson 733 F.Supp. 465

Elrod, et al. v. Burns et al. 427 U.S. 347

Lambert v. Polk County, Iowa 723 F.Supp. 128

Leiserson v. City of San Diego 229 Cal. Rptr. 22

Near v. Minnesota 283 U.S.697

Quad-City Community News Service v. Jebens 324 F.Supp. 8

Richmond Newspapers v. Virginia 448 U.S. 555

Schnell v. City of Chicago 407 F.2d 1084

State of New Jersey v. Lashinsky 404 A.2d 1121

WSB-TV v. Lee 842 F.2d 1266


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Endnotes