Exposing Hysteria

Government restrictions on photography, in the name of national security, are curbing freedom of expression

From the Summer 2004 issue of The News Media & The Law, page 42.

By Alba Lucero Villa

Security" and "safety" have officially joined "privacy" as post- Sept. 11 buzzwords used to restrict where and what people can photograph in the United States. Worse, say First Amendment advocates, are the growing number of policies that require photographers to seek government permission before snapping even a single image.

"The right to take photographs is now under assault more than ever," said Bert Krages, an attorney in Portland, Ore., who specializes in photographers’ rights. "There has been an increased level of harassment.

"Law enforcement officials may use the Patriot Act or the Homeland Security Act as justifications," he added, "but in reality they did not impose any restrictions on photography."

Law enforcement officials may not have issued restrictions, but a handful of state public transportation authorities have. At least five major transit operators in the United States now require photographers — professional, amateur and tourists — to obtain some type of clearance before taking pictures. Many of the "rules" are ambiguously worded, but no policy has yet to be challenged in court as a violation of photographers’ First Amendment rights.

The question of whether these policies will survive constitutional review may turn on how "reasonable" judges think the regulations are. In 1992, the Supreme Court ruled in International Society for Krishna Consciousness, Inc. v. Lee that public airport terminals — analogous in many ways to city transit systems — are not public forums and, therefore, "reasonable" regulation of expression is acceptable as long as the regulation is not an effort to suppress the speaker’s activity due to disagreement with the speaker’s view. The definition of a reasonable regulation is unclear, but it would likely have to promote some type of public interest, according to the Reporters Committee’s "Access to Places" guidebook. It remains to be seen if the interest in stopping photography – presumably, the small chance that regulating all photographers will deter would-be terrorists from gathering intelligence on transit infrastructure – is a reasonable way to fight terrorism.

In response to a proposed policy to ban photography, filming and videotaping on New York City transit subways, buses and the Staten Island Railway, approximately 50 professional and amateur photographers rode the rails in protest June 6. Beginning in Grand Central Station, the protesters dispersed throughout the city’s boroughs for more than an hour taking pictures of others taking pictures of the subterranean transit system.

The Metropolitan Transportation Authority in New York, which manages the nation’s most-used public transit system, said the proposed rule change — suggested by the New York City Police Department — was made in the name of national security.

"The world, and consequently our operating environment, has changed dramatically," Douglas Sussman, director of community affairs for the MTA, said in a public statement. "These yet-to-be-approved changes to our rules, the first in almost a decade, are intended to enhance safety and security for both our customers and employees."

The protesting photographers derided the rationale that photographs could aid potential terrorists in planning attacks against the city’s public transportation system. Krages, the media attorney in Portland, Ore., said New York’s proposed ban was based on an "irrational fear" and noted that photographs of transportation systems are already widely available on the Internet. Moreover, advances in technology — namely cell phones that can take pictures — make enforcement of the restrictions virtually imposs ible, he said.

"The MTA is showing a profound lack of judgment," Krages said. "Photography is not a tool used by terrorists."

The MTA had an earlier photo ban that was taken off the books in 1994. The ban dated as far back as 1932, said Charles Seaton, an MTA spokesperson. However, the reasons for its implementation are no longer clear, he said.

Seaton said the old ban was removed as part of an overall revision to the agency’s rules of conduct in 1994. The New York Times reported on May 21 that transit officials decided to lift the ban "after embarrassing news reports that a woman had been given a summons for taking a picture on a subway in the Bronx."

Similar restrictions are already in effect in major cities throughout the country.

The Massachusetts Bay Transit Authority has an "unwritten rule" against transit photography. Although it is not codified in agency rules or state statute, the MBTA requires a permit to take pictures aboard trains, buses or subways, and allows security personnel to question any person snapping photographs, according to agency spokesperson Lydia Rivera. It’s a policy that has "always been in place," she said.

The Southeastern Pennsylvania Transportation Authority requires written permission for all commercial, professional or media photography. Tourists and transit enthusiasts are not required to receive such permission, but security restrictions instruct transit police to question anyone taking photographs within the transit system.

In Florida, the Miami-Dade Transportation Agency requires reporters to have a permit to photograph its public transit system. Unless covering a breaking news story, all photographers need authorized access letters. The policy has been in place since the agency’s inception in 1960, said agency spokesman Manny Palmero.

"It’s for safety and security reasons," Palmero said, citing the Sept. 11 attacks in New York City and Washington, D.C.

New Jersey Transit, which also requires photographers to apply for a permit, also cites national security as the justification.

The permit application stipulates photos shall not be used for "commercial and/or public purposes," defined as "includ[ing], but is not limited to the sale, offering, promotion, peddling, vending or public display for charge of such photographs/film." Photographers are also prohibited from making such images available for public view without the agency’s written approval.

"N.J. Transit police officers challenge anyone not known to have a permit, not in an effort to harass, but with the sole goal of protecting public safety and discouraging potential terrorists," Chief of Police Joseph Bober wrote in a May 19 letter-to-the-editor, responding to an editorial in an online trade publication that protested the state’s photography restrictions.

"Although photography is not specifically mentioned in these regulations, the N.J. State code does establish N.J. Transit’s legal right to distinguish between commercial and non-commercial expression, and issue Certificates of Registration or contracts accordingly," Bober wrote.

The permit application form requires photographers to list all stations and equipment to be photographed, along with the exact dates and times. It stipulates that photos should be taken without flash, from a 35-millimeter camera, and asks for a copy of "the photos taken of its property."

Similarly, the Washington Metropolitan Area Transit Authority in the District of Columbia requires photojournalists interested in taking pictures of metro trains or buses to make arrangements through its media relations office. When filming, photographers may only use hand-held cameras; no tripods are allowed.

Although the millions of tourists who visit Washington, D.C., each year are not required to receive clearance, professional freelance photographers must also fill out paperwork with the transit authority proving that they have liability insurance, said Lisa Farbestein, an agency spokesperson.

Krages said such photography restrictions are "reducing citizen oversight" and "essentially stifling a major means of expression." In his view, government officials should view photography as a public safety tool, not a hazard.

"Properly used, photography is an excellent deterrent against crime," Krages said.

Under New York’s proposed ban (posted on the MTA’s Web site at www.mta.nyc.ny.us/nyct/rules/nyct.htm) amateur, freelance and news photographers would have to carry valid press identification cards issued by the New York City Police Department, or obtain written permission from the MTA to take photographs. The proposal does not include an appeals process.

New York state law requires the MTA board of directors to consider public comments on the proposed rule for at least 45 days from the time it is published in the New York State Register, the official publication of the New York Department of State.

The proposed rule will be added to the register once the Governor’s Office of Regulatory Reform approves it. According to Charles Seaton, a spokesman for the MTA, it remains unknown when that will be. However, he said the MTA will consider all comments posted to its Web site before the official start of the comment period

Eugene Mopsik, executive director of the Pennsylvania-based American Society of Media Photographers, remains none too pleased.

"These are all issues that make it more difficult for editorial photographers to do their job and exercise their First Amendment rights," Mopsik said. "Access is harder these days."