Taking pictures is a basic freedom
Banning photography and video recording of people in public without their permission in a misguided attempt to combat sexual harassment would deprive the public of images and information about newsworthy and historic events. Society would be worse off with such a law, and the First Amendment prohibits it.
Journalists and documentarians, in particular, rely on the First Amendment right to record to report the news. News photography has captured countless events in ways that words alone cannot. Photos and recordings allow the public to better understand current events, to engage in public debate on the issues raised by these events and, ultimately, to hold their elected officials accountable.
Any law prohibiting photographing or video recording people in public without their permission would violate the First Amendment and deprive the public of important information about current events that directly affect their daily lives.
In May, a bystander’s video showed Derek Chauvin, a white Minneapolis police officer, kneeling on the neck of George Floyd, a Black man, killing him. The video captured police officers, Floyd, and, occasionally, bystanders who were recording and objecting to the officers’ treatment of Floyd. The 17-year-old who recorded the video, Darnella Frazier, cannot be heard asking anyone’s permission to film them, and rightfully: She was not legally required to do so.
After Frazier posted the video on social media, the news media reported on it, sparking a wave of protests decrying the killing of Floyd and many other Black Americans. Photographs and recordings taken by journalists, bystanders and protesters at these demonstrations have shown the world clashes between police officers and protesters and police targeting press reporting on the protests.
In Portland, Ore., video recordings even captured the fatal shooting of a right-wing counter-protester during a heated demonstration in which Black Lives Matter protesters clashed with supporters of President Trump. And the press used video recordings to report about the lead up to and aftermath of a shooting of demonstrators at a protest in Kenosha, Wisc. These and other recordings convey in vivid detail what it is like to be on the ground at the protests and how law enforcement officers interact with protesters and the press.
Similarly, videos and pictures of people from other recent demonstrations have shed light on the actions of protesters. These recordings show protesters blocking traffic, pulling down or defacing public monuments and entering a state capitol building while armed.
Courts around the country have recognized a First Amendment right to record the police in public, but the police and protesters are not the only important subjects of videos and pictures in public places. Videos and photographs of everyday people can be just as newsworthy. For example, earlier this year Christian Cooper, a Black man who was birdwatching in Central Park, used his cellphone to capture video of a white woman calling 911 to falsely report that he was threatening her life.
Newsworthy events happen in an instant, and it is often simply impossible for journalists to get permission before taking the one-in-a-million picture that tells the story.
In addition, journalists often take pictures or videos of crowds, such as when reporting about demonstrations, campaign events or other gatherings. It is not practical to require reporters to obtain the consent of every person in those photos and videos. A statute requiring them to do so would effectively ban these pictures or videos even if most of the people captured on film would consent.
Nor are reporters a special class with carved out constitutional freedoms when it comes to public photography. Under the law, an individual looking to take a picture and keep it on his phone, or share it on Instagram, has precisely the same rights as a Daily News photographer does.
Laws that prohibit harassment, stalking and wiretapping, to name just a few, already protect people’s legitimate privacy interests. But any proposal to limit photographs and video recording in public to combat sexual harassment could actually chill speech about sexual harassment. For example, in 2014, a marketing agency and advocacy group filmed an actress walking through the streets of New York City over 10 hours as she was catcalled by male strangers. It seems unlikely that most of these men would have agreed to appear in the resulting viral video.
It is for very good reason that the First Amendment protects the right to take photographs or videos in public. Much of the news happens on our city streets, in parks and in other public places. People who fear they may be breaking the law while gathering the news may simply self-censor, depriving the public of their images, recordings and news coverage. The right to take pictures and record videos in public is precious. We must safeguard it.
Vogus is a staff attorney at the Reporters Committee for Freedom of the Press.