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Posted by on Sep 28, 2011 in Law, Society | 3 comments

Status Report on the War on Photography

As more videos surface in the NYPD pepper-spray incident, we might expect a heightening of tensions in the war on photography in NYC. Morgan Leigh Manning, ”

What war on photographers, you ask?

Less than Picture Perfect: The Legal Relationship between Photographers’ Rights and Law Enforcement,” Tennessee Law Review, Vol. 78, p. 105, 2010.

Abstract: Threats to national security and public safety, whether real or perceived, result in an atmosphere conducive to the abuse of civil liberties. History is littered with examples: The Alien and Sedition Acts of 1798, the suspension of habeas corpus during the Civil War, the Palmer Raids during World War I, and McCarthyism in the aftermath of World War II. Unfortunately, the post-9/11 world represents no departure from this age-old trend. Evidence of post-9/11 tension between national security and civil liberties is seen in the heightened regulation of photography; scholars have labeled it the “War on Photography” – a conflict between law enforcement officials and photographers over the right to take pictures in public places. A simple Google search reveals countless incidents of overzealous law enforcement officials detaining or arresting photographers and, in many cases, confiscating their cameras and memory cards, despite the fact that these individuals were in lawful places, at lawful times, partaking in lawful activities.

This article examines the so-called War on Photography and the remedies available to those who have been unlawfully detained, arrested, or have had their property seized for taking pictures in public places or private places open to the public. It discusses recent incidents that highlight the growing infringement of photography rights and the magnitude of the harm that law enforcement officials have inflicted, paying particular attention to the themes these events have in common. It explores the existing legal framework surrounding photography rights and the federal and state remedies available to those whose rights have been violated. It examines the adequacy of each remedy including: (1) declaratory and injunctive relief, (2) Section 1983 and Bivens actions, and (3) state tort remedies. It discusses the obstacles associated with each remedy and the reasons why these obstacles are particularly hard to overcome in the context of photography. It then argues that most, if not all, of the remedies discussed are either inadequate or altogether impractical considering the costs of litigation. Lastly, this article will discuss the reasons why people should be concerned about the War on Photography and possible ways to reverse the erosion of photography rights.

Image: I’m a Photographer, Not a Terrorist logo.

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Copyright 2011 The Moderate Voice
  • Allen

    Again, where the heck is Mayor “Mr. Nice Guy” Bloomberg? Here we have one of the, (supposedly), most people friendly Republican mayors in the nation quietly marshaling his police force to deny civil freedoms to the people of, “supposedly liberal”, New York.

    What we have here, is a failure to communicate.

    Mayor Bloomberg, How would you describe these anti-camera police actions….care to comment…..Mayor Bloomberg….Mr. Mayor….HEY WHERE ARE YOU…?

  • slamfu

    I am startled to hear that police can simply confiscate phones from people with a false allegation. I really hope the ACLU can step up and crack some heads over this. I find that to be unbelievable that police can actively surpress people from trying to hold them accountable.

  • STinMN

    Within photography circles this “war” has been well known, existing even before 9/11 but has become much more aggressive since. It is occurring not only in the US but worldwide as well. For many in other countries the enforcement is much more aggressive than the harassment in the US. At least we have the US Constitution that should provide some protection. Since 9/11 the additional scrutiny seem to be the result of some poor “group think” logic – terrorist need to know what their targets look like, so they must take photos of their targets, so anyone taking a photo must be a terrorist – that has never been fully countered by any AHJ and there is no evidence that terrorist have actually gone out and taken photos of the targets. SCOTUS has refused to step in and clarify when they’ve had the opportunity, so we’re left with law enforcement running by their own interpretation of the constitution.

    The ACLU recently published a “Know Your Rights” for photographers. It is available at http://www.aclu.org/free-speech/know-your-rights-photographers This is one of the best discussions I’ve seen on the subject. One of the most important things they point out is if you are stopped for taking photos is to be cooperative, but ask if you are free to go. Once that question has been asked it is no longer a voluntary stop and the law enforcement officer must determine if there is probable cause to continue to detain you.

    This is one subject I take a great interest in (as well as cyclist rights) primarily because it does affect me. I’m a bit of a shutter bug, and I’ve had a few photos published and have even been paid for 1 (that must make me a professional!) I have been stop and asked what I was doing taking photos in public places, I’ve been told that I need to immediately delete all photos at certain public events. I’ve had my camera gear yanked out of my hands at a law enforcement fundraiser for charity where I was the “official” event photographer (Can’t jeopardize those that ensure our freedom by taking pictures of them jumping into a hole in the ice.) Virtually all acknowledged they overstepped their bounds once they were confronted with a “Photographer’s Bill of Rights” pamphlet that is freely available on the Internet. But there won’t be any change law enforcements attitude to photographers until someone forces them to change their attitude.

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