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Photographers and police: a First Amendment clash

Photographers have been arrested, had camera equipment seized, and seen memory cards deleted by police officers. Is it harassment or protecting public safety?

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Moreover, police often have the upper hand in court. The New Orleans jury, for example, found that the photographers brought their troubles on themselves.

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Police have a legitimate right to object to filming that interferes with their duties. And “there's another reason cops are skittish,” explains one police officer commenting on a 2008 Popular Mechanics story titled Watching the Watchers. “As anyone who has ever seen a Michael Moore movie knows, creative editing and partial context can let you make film say whatever you want.”

Still, experts say it’s relatively easy for police officers to interpret obstruction laws too broadly.

“Photography can be a double-edged sword, depending on your perspective,” says Portland, Ore.-based attorney Bert Krages, author of “The Legal Handbook for Photographers.”

“One of the problems photographers do face is the vulnerability to being charged with things that they didn’t do, and where, absent images or independent witnesses, it then comes down to a citizen’s word against a police officer’s word.”

For many civil libertarians, police overreach is incontrovertible in almost all camera seizure and photographer arrest cases. “We have this thing called the Constitution, and the idea that you can’t film something that you can see is ludicrous,” says Marjorie Esman, executive director of the Louisiana ACLU. “The sad thing about these cases is it suggests that police don’t want people to know what they’re doing, which then implies that they’re doing something that they don’t want people to know that they’re doing.”

At least one state, Mississippi, is looking at whether First Amendment protections are strong enough to protect photographers in the video age. That debate needs to happen nationally, too, some law experts argue.

“Abuse of photographers is common, and difficult to remedy under current law,” writes University of Tennessee law professor Glenn Reynolds in an e-mail. “I believe that public officials performing their duties – including, but not limited to, law enforcement – should be subject to photography by citizens, and I would favor a federal civil rights law to that effect.”

More pragmatically, citizens do have recourse beyond the courts if they believe their First Amendment right to capture reality in the public sphere has been violated by an officer of the state.

“Complaining to a department’s internal affairs unit is a pretty effective tool in [educating] police departments better with respect to the rights of the public to take photographs,” says Mr. Krages. “And citizens can also get in touch with local or regional media. Newspapers have a deep interest in being able to photograph in public.”