Most people do not fully understand the rights they have under the U.S. Constitution until those rights are violated. In the past several years private individuals have taken it upon themselves to audit Public Officials such as Law Enforcement Officers, Local Government Officials and even Public Libraries, as to their violations of Constitutional protected rights of individuals.
The most common audit is the right to record these individuals and the places one is allowed to record.
Recently, many of the public Court Houses in South Carolina have put up signs stating that recording in these buildings are prohibited. The question has arisen in many States and in South Carolina if an individual is allowed to record in public accessed buildings such as Court Houses.
When is public really public?
Once again, the general rule for recording is: where there is public access in such traditional public forums as a sidewalk or a park you are permitted to record anything in plain sight (i.e. buildings, people) because in such places there is no reasonable expectation of privacy. In other areas that are generally open to the public but may be privately owned such as a mall, recording may be restricted either by posted signs or by mall personnel. In order to avoid confrontations it is always a good idea to check with property owners to obtain permission before recording.
It also is important to remember that the First Amendment only protects against governmental limitations. Businesses and non-government organizations may require special credentials in order to gain entry to an event and to record. Usually such credentials may only be obtained by agreeing to or meeting certain requirements specified in writing, such as NFL sideline passes. Many press credentials issued by law enforcement agencies allow the bearer to cross police and fire lines under certain conditions. Whenever possible, apply for credentials to specific events well in advance because a basic press pass (if you have one) may not suffice.
Recording public meetings
The right to record public officials or record at public meetings is another question of concern to photographers. Most governments have freedom of information statutes as well as open meeting laws that address those questions; however, it is important to check the law in your area. For example, in California, when attending a meeting of a governmental body that is required by law to be open to the public, you may record audio and/or video unless the governing authority makes a determination that such recordings may disrupt the proceedings because of such things as noise, lighting or obstructing a view. These restrictions must be reasonably related to achieving a governmental purpose and may not be imposed because the officials do not like the opinions of the person doing the recording. The same would be true of a government official out in public or attending a public meeting.
Resources for support
The National Press Photographers Association (NPPA) has been involved in many of the incidents mentioned above.
There is no excuse for police and security officers to intentionally disregard a citizen’s right to record an event occurring in a public place but it will continue to happen until departments create better guidelines, conduct proper training and administer discipline when appropriate. This will only come about through greater awareness of these incidents and strong advocacy on behalf of journalists and citizens by such groups as the Reporters Committee for Freedom of the Press, NPPA and personal accounts from blogs like Photography Is Not A Crime. It may also require filing suit in egregious cases, such as the one recently brought by NPPA member Philip Datz.
Being aware is key
In a time of technology and terrorism, photojournalists throughout the world have risked and in some cases given their lives to provide visual proof of governmental activities. Sadly, what is viewed as heroic abroad is often considered as suspect at home. It is therefore incumbent that those who wish to exercise these freedoms, be aware of their rights and do their best to counter such abridgments through heightened awareness and education.
An example of a questionable incident occurred in Kershaw County. Where a private citizen who was there for a hearing was prevented from entering the court house with his mobile phone. The citizen explained that the phone was used to aid him with is hearing aid and without it he would not be able to hear what was going on in the court room. The deputies refused his entry unless he left his mobile phone outside the building. As this is not simply a question of Civil Rights Violations, but also would seem to be a violation against federal disability laws.
Many times it is not the Officers fault as many Law Enforcement or Government Officials, or even Librarians as they are not trained in Constitutional Rights Protections.
Some have raised the question of what are these officials wanting to hide if they have such an issue with private citizens recording them in their official capacity.