The photographer and the law: Tips for photographing and recording in public spaces

By Christina Animashaun

In the late 1800s, the invention of Kodak’s Brownie changed the landscape of photography. The cardboard box camera was simple to use, inexpensive and gave ordinary people the ability to document their surroundings outside of a photographer’s studio.

The laws that protected those who took snapshots with their Brownie cameras more than a century ago are the same laws that protect photographers and videographers today. At the recent Investigative Reporters and Editors annual conference in Philadelphia, media lawyer Mickey Osterreicher discussed ways for journalists to protect themselves when photographing and recording public spaces.

Freedom of speech is not absolute

Photography and recording in public spaces is protected under the First Amendment, which guarantees individuals freedom of speech. Those freedoms can be restricted on the time, place and manner of how photographs and videos are taken.

Osterreicher, general counsel for the National Press Photographers Association, explained that restrictions can be as simple as a police officer asking a photographer to move if they are in the way of an arrest for their safety. However, telling a civilian to turn off his or her camera is not enough.

"There is no legal basis for that," Osterreicher said. "The presence of a camera is not a case where law enforcement can curb and infringe upon someone’s First Amendment rights.”

Can I see what’s on your camera? 

Osterreicher spoke about the common practice of law enforcement officials who attempt to confiscate or destroy photographs or video. Although an individual can refuse to give consent to showing the contents of his camera if asked by law enforcement, citizens have been put into custody for disorderly conduct.

Last year, the Baltimore Police Department settled a lawsuit after a man was unlawfully detained by police officers after he recorded an arrest on his cell phone in 2012. Officers seized Christopher Sharp’s phone and deleted more than 20 recordings before returning it to him. Sharp pursued legal action against the Baltimore Police Department, which resulted in a settlement to Sharp last year. It also caught the eye of the U.S. Department of Justice.  

During the review of the case, the agency issued a statement reminding the court that, “under the First Amendment, there are no circumstances under which the contents of a camera or recording device should be deleted or destroyed.” 

Keep rolling

Although Osterreicher believes more municipalities and police departments will become aware of media laws pertaining to public spaces, unlawful arrests continue to be a reality for photographers and videographers.

As municipalities move toward the use of police body cameras, Osterreicher believes this will cut down on officer misconduct and help law enforcement officials understand why it’s important to keep a visual record.

“Officers see cameras as a challenge to their authority.” Osterreicher said. “But the right they have to record on the street is the same right that citizens and journalists have.”

In the event of an arrest or detainment when recording or taking pictures in public spaces, Osterreicher offers one cardinal piece of advice:

“Keep rolling.” Osterreicher said. "Unless you have something to refute that, such as [your] video, you will most likely get charged with something and have those charges stick.”

For more information, visit the National Press Photographers Association website.

Christina Animashaun is completing her master's degree in Journalism and Public Affairs at American University. With an emphasis in broadcast news production, Animashaun uses visual and audio media tools to document events and tell stories. In her spare time, she shoots film photography, plays rugby and wears hats.