Millions of people enjoy photography for both personal or professional reasons every day. But recently there has been an increase in law enforcement violating the constitutional rights of those photographers, prohibiting them from taking legal and rightful pictures. Below is an article from the ACLU’s website, and TFNJ staff thought it would be helpful to photographers across the U.S.
KNOW YOUR RIGHTS PHOTOGRAPHERS: By the ACLU
Taking photographs of things that are visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties. Unfortunately, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places and harassing, detaining and arresting those who fail to comply.
Your rights as a photographer:
When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government and is essential in a free society.
When you are on private property, the property owner may set rules about the taking of photographs. If you disobey the property owner’s laws, they can order you off their property (and have you arrested for trespassing if you do not comply).
Police officers may not generally confiscate or demand to view your photographs or video without a warrant.
If you are arrested, the contents of your phone may be scrutinized by the police, although their constitutional power to do so remains unsettled. Also, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves (it is unsettled whether they still need a warrant to view them).
Police may not delete your photographs or video under any circumstances.
Police officers may legitimately order citizens to cease activities that are indeed interfering with legitimate law enforcement operations. Professional officers, however, realize that such services are subject to public scrutiny, including by citizens photographing them.
Note that the right to photograph does not give you a reason to break any other laws. For example, if you are trespassing to take photographs, you may still be charged with trespass.
If you are stopped or detained for taking photographs:
Always remain polite and never physically resist a police officer.
If stopped for photography, the right question to ask is, “am I free to go?” If the officer says no, then you are being detained, something that under the law an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your stopped is considered voluntary under the law and is legal.
If you are detained, politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment and does not constitute reasonable suspicion of criminal activity.
Special considerations when videotaping:
With regards to videotaping, there is an important legal distinction between a visual photographic record (fully protected) and the audio portion of a videotape, which some states have tried to regulate under state wiretapping laws.
Such laws are generally intended to accomplish the crucial privacy-protecting goal of prohibiting audio “bugging” of private conversations. However, in nearly all cases audio recording the police is legal.
In states that allow recording with the consent of just one party to the conversation, you can tape your interactions with officers without violating wiretap statutes (since you are one of the parties).
In situations where you are an observer but not a part of the conversation, or in states where all parties to a conversation must consent to tape, the legality of taping will depend on whether the state’s prohibition on taping applies only when there is a reasonable expectation of privacy. But that is the case in nearly all nations, and no state court has held that police officers performing their job in public have a reasonable expectation. The state of Illinois makes the recording illegal regardless of whether there is an expectation of privacy, but the ACLU of Illinois is challenging that statute in court as a violation of the First Amendment.
The ACLU believes that laws that ban the taping of public officials’ public statements without their consent violate the First Amendment. A summary of state wiretapping laws can be found here.
Photography at the airport
Photography has also served as an essential check on government power in the airline security context.
The Transportation Security Agency (TSA) acknowledges that photography is permitted in and around airline security checkpoints as long as you’re not interfering with the screening process. The agency does ask that its security monitors not be photographed, though it is not clear whether they have any legal basis for such a restriction when the monitors are viewable by the traveling public.
The TSA also warns that local or airport regulations may impose restrictions that the TSA does not. It is difficult to determine if any localities or airport authorities have such rules. If you are told you cannot take photographs in an airport, you should ask what the legal authority for that rule is.
This article originally appeared on the ACLU website.
If you think your rights have been violated, you can contact the ACLU.
This article contains confident legal assertations, opinions, and statements that are those of the ACLU, you should consult legal counsel before taking any actions that might be illegal.
The Florida News Journal made no editorial changes to the article above.
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