More Unjust Attacks on PhotoJournalism

jmuriot riot in virginaSeems like every week I’m reading another story of the rights of photojournalists getting stomped on. Today, no exception. In this Virginia case, the cops seized unpublished photos from the James Madison University newspaper using a search warrant that violates journalist’s privilege under the First Amendment, the Virginia Constitution and common law.

“The settlement ends a month-and-a-half long debate over the photos, which began when someone from the prosecutor’s office called the student newspaper a few days after the riot and asked for copies of unpublished photos. The Breeze staff declined to do so, citing the journalist’s privilege under the First Amendment, the Virginia Constitution and common law, according to the settlement. The prosecutor’s office also contacted the university’s director of judicial affairs and general counsel, who declined to intervene, according to Garst’s statement. The next day, Garst received a search warrant for “all electronic devices” that are “on the premises or possessed or owned or leased or used by ‘The Breeze’ or by any of its employees, agents or members,” so they could obtain photos, videos or other images recorded that weekend, according to a copy of the warrant. Garst and a number of plainclothes officers then executed the warrant…” -Washington Post

Turns out that somebody at the prosecutors office realized this was a no-no. The Washington Post reports further that, “In a statement Garst apologized ‘for the fear and concern that I caused the Breeze and its staff. The discussions that have occurred have enhanced my understanding and re-enforced the role of a free press in our democracy.’ Garst said that in the future, when seeking information and documents from news organizations, including student media, she will do so through the subpoena process.”

Imagine that. The legal way. Read more here.

(via The Washington Post. Thanks @nelsonhd)

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45 Responses to More Unjust Attacks on PhotoJournalism

  1. Glyn Dewis June 2, 2010 at 4:49 am #

    Makes me wonder not just when all this will end but also what will it take?

    Glyn

  2. Adam H June 2, 2010 at 5:26 am #

    Maybe I’m devils advocate here – and obviously the search warrant is wrong, but why did the paper refuse the request for the unpublished photos? Seems like a legitimate request that only was made bad by the heavy handed nature of the follow-up – which as stated oversteps the mark. We hand over unpublished stuff of crime scenes/accidents/events all the time? Unless I’m mistaken of the details in the case – I can’t see what the problem is?

    • Chase June 2, 2010 at 7:35 am #

      adam: you’re certainly right that the photos should be made available, but they should just be so thru the subpoena process, not seizure. seizure implies that the paper–if they were planning to run images–would no longer be able to in this sort of surprise attack format. the subpoena process is a process that gives the media time to decide whether or not to publish unpublished works at their discretion, rather than a court’s…

    • Stephen June 22, 2010 at 11:04 am #

      Adam,

      Rights must be exercised & defended routinely or it will be acceptable for them to be trampled upon. This is a nation of law that must be followed by everyone, including the government… especially the government.

  3. Scott MacKenzie June 2, 2010 at 6:58 am #

    I’ve photographed a few political rallys. In our region, the same protesters show up at some of them–One group of young people were blowing whistles, banging on pots and pans with drumsticks–(some were blonde dudes with dreads, who looked…interesting), and a few days later, the Same People showed up on television from Raleigh, and then again later in the week from Charlotte, NC.
    Sometimes members of law enforcement visually record such gatherings, usually to find people who are on the lam, not to simply find someone to arrest/harass.
    Perhaps in this case, they were looking for particular individual(s).
    It seems kind of “Governor Rhodes” of them to burst in with a Search Warrant.
    Seems like the prosecutor could use a lesson in marketing.
    It also seems that there are Four kind of people you don’t anger: Writers, Musicians, Talkshow Hosts and Visual Artists, ho ho.
    Thanks for this story!

  4. Donnie Bell Design June 2, 2010 at 7:29 am #

    I hate to see this. I understand the importance of journalism, especially in the current media climate where everything is recorded and broadcast live. Now with Twitter and Facebook becoming the de facto go to for news, everyone is becoming a photojournalist. It scares me to think that someone who has a right to be there taking pics could have their intellectual property taken away, or punished for not handing it over.

  5. Brian Carey June 2, 2010 at 7:38 am #

    I sometimes think this kind of action may be based on the notion that “it’s best to ask forgiveness later than ask permission”!

  6. Donald E Giannatti June 2, 2010 at 7:48 am #

    The press is being, well, pressed from a lot of sides. Market forces, less than competent prosecutors/law enforcement and the public’s lack of understanding on what the Constitution actually says regarding these matters.

    And now the FTC wants to basically take over the news business… maybe a nose under the tent sort of thing, but it is a big nose that is being proposed. Today’s LA Times: http://latimesblogs.latimes.com/washington/2010/06/federal-trade-commission-free-press.html

    Not sure that freelance PJ’s, Student PJ’s or small, independent of the Government PJ’s will fare very well under these proposed “Re-Inventions” if you will.

    We as a community must be willing to fight hard against a fast moving snowball of rights / privilege grabs by those in the highest levels of power. It makes no difference which side of the ‘aisle’ one is on, as the powers shift from left to right… so wanting a lot of power when ‘my guy’ is in there translates to a lot of pain when the ‘other guy’ becomes the one in power.

    The only way is to keep the freedom. It is reassuring that the Prosecutor apologized, it is disconcerting that she was so lacking in the basic fundamentals of her job that she had to.

  7. Walt H June 2, 2010 at 7:54 am #

    I agree with Adam H, why didn’t the Breeze hand over copies willingly? I realize that the police should have subpoenaed them if the Breeze refused, but I see no reason why the Breeze should have refused in the first place. They weren’t protecting any sources so I see no real reason why they declined in the first place. I guess we’re only seeing one side of the story here, which is the bad side.

    As for Donnie Bell’s comment on intellectual property. Pure IP is not a valid reason. Much like land, the government has the right to seize any and all crime related items, including your IP. If you have taken pictures of a crime scene, those picture might be needed to help solve the crime. If you aren’t willing to freely help in that process due to your IP rights, then personally I am all for warranted seizure. Imagine if it was a loved one who was murdered and someone journalist had pics of the perp but refused to hand them over because it infringed on his IP rights. Im beginning to feel that photogs are pouring themselves into IP right just a little TOO much these days. I understand one’s need to protect their livelihood, but were talking about helping our law enforcement solve crimes … If a journalist refuses to talk he/she goes to jail for contempt, that same process should apply to photogs.

    With all this being said, my break down is thus … a bunch of kids shot a riot, cops ask for pics, college kids were being punks towards the cops, cops/prosecutors overstepped their bounds in retaliation … I think there are more fingers to be pointed than just Garst. Just my 2 cents.

    • Duluk June 2, 2010 at 9:25 am #

      “a bunch of kids shot a riot, cops ask for pics, college kids were being punks towards the cops, cops/prosecutors overstepped their bounds in retaliation”

      Which do you think is worse? The college kids “being punks” or the cops/prosecutors overstepping their bounds? You seem to more on the side of excusing the cops and prosecutors. I think that’s inane (yes, inane, not insane).

      Maybe the college kids were being punks; maybe they weren’t, I don’t know. But they’re college kids. That is, they’re kids (though they wouldn’t agree :) ). But the professional adults (i.e., cops and prosecutors) have no excuse for behaving the way they did. I find it utterly astounding that a prosecutor doesn’t understand the importance of the first amendment, or perhaps that it doesn’t apply to college kids.

      ” Im beginning to feel that photogs are pouring themselves into IP right just a little TOO much these days.”

      _I_ think law enforcement is getting too carried away with seizure regardless of the constitution – we can thank 9/11 for that. Photos “pouring themselves into IP right” is likely a reaction to law enforcement’s recent behavior regarding photographers – namely: seize and arrest, then sort it out later. Or, a scary version of “better ask for forgiveness than permission.”

      -Duluk

  8. Scott Bourne June 2, 2010 at 8:10 am #

    Walt H you couldn’t be more wrong. The government does NOT have the right to seize anything short of allowing due process. This pesky thing that bothers the pro-police at all cost crowd called the US Constitution says so.

    The press needs to be free from undue police interference – why? Because we’ve seen that it’s the press that helps keep the cops honest. If the cops get to the point where they can seize anything they want, when they want, the way they want – they’ll start using that excuse to cover up their own misconduct.

    The prosecutor in this case should be sued by the newspaper staff under 42 USC 1983 for violations of their civil rights. The cops saying I’m sorry isn’t good enough. It wouldn’t be good enough if the tables were turned.

    Let’s remember what Franklin said – those who trade freedom for security deserve neither. Thanks for bringing this to our attention Chase.

    • William J. Ingalls June 2, 2010 at 8:23 am #

      Well put Scott!

    • Walt H June 2, 2010 at 12:55 pm #

      Scott, perhaps you should read up on eminent domain? It doesn’t just include land like so many people believe, it is ANY private citizen’s property, even if that citizen has the rights to it or vested within it. This includes copyrights as well as patents. Granted this is with just compensation as limited by the 5th amendment, but yes, the government can seize anything they like (legally speaking that is) whenever they like. Bush even extended the rights under executive order. Further, legally, if anything property, real or intangible (like a copyright) is used in the course of a crime, or believed to be used in the course of a crime, it can be legally seized until such time as the criminality of said item is sorted out.

      However, I still do not agree with a photojournalist withholding images that might show a crime just because they can. Perhaps if photogs were MORE eager to assist in law enforcement there would be no reason to even consider such nefarious actions. Don’t get me wrong, I don’t think the prosecutor did the right thing, in fact I agree they should look into legal action against them for abuse of power. With that being said, my saying that the college kids were being a little anti-establishment cannot be refuted. There simply was no valid reason to withhold those images from a law enforcement request.

      Lastly, there was NO interfering with the press. There was no gag orders, no “we’re taking your IP rights”, no “give us your originals” … they asked for COPIES of unpublished photographs. They weren’t looking to stop the press, they were trying to do their jobs and wanted images from the people who were there witnessing it. If anything, it was the kids DUTY to hand over copies. Now, had this been a case of “you cant publish these, show them to anyone, etc” THEN I would have been totally on the side of the photogs.

      • Scott Bourne June 6, 2010 at 7:36 pm #

        @Walt H I won’t debate someone who won’t identify themselves fully in a forum like this. If you won’t stand behind what you say then frankly I don’t care what you say period. But so that others who read this will know – you’re flat out 100% wrong about eminent domain. The kids had NO legal duty. The cops got it wrong as is evidenced by the prosecutor’s backing up and admitting he was wrong. Since the prosecutor admitted he was wrong why can’t you?

        • Walt H June 13, 2010 at 7:15 pm #

          @Scott … regardless of whether you want to believe something or not doesn’t make it false. Had you really the motivation to prove me wrong you could have just Googled up some information. You see, like yourself, I am not a lawyer and I go look up valid information instead of blindly hurling accusations. I will post my References, but just for those who read this, it is Scott who is incorrect …

          “No definition of the reach or limits of the power is possible, the Court has said, because such ”definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. . . . Public safety, public health, morality, peace and quiet, law and order–these are some of the . . . traditional application[s] of the police power. . . .” Effectuation of these matters being within the authority of the legislature, the power to achieve them through the exercise of eminent domain is established.”

          FYI: eminent domain is a Police Power under the rule of Sovereignty and does not require Constitutional inaction, only constitutional restrictions. Sovereignty also applies to the state of which you are a resident, ergo a state legislature has the power to seize as well without any backing of the Federal government. Also, eminent domain has been delegated to 3rd party companies in the past as well for railroads, water, etc.

          As you can plainly see, under the law any personal property (real or imagined) can be take if it promotes public safety, peace and quiet, or law and order.

          And further, Scott is right about due process, but wrong about the rest as long as just compensation is given … “legislature may prescribe a form of procedure to be observed in the taking of private property for public use, . . . it is not due process of law if provision be not made for compensation. . . . The mere form of the proceeding instituted against the owner . . . cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation.”

          As for who I am, it doesn’t really matter who I am. Right is right. But, if you really must know my name is Walt Howington, not that knowing my last name really changes anything.

          But for the record, since people like to cherry pick my responses, I will once again state that I do not agree with what the prosecutor did, but I also do not agree with what the college kids did. Also, I never said that the kids had a LEGAL duty, I simply said they had a duty … as citizens. If you shot a picture of a murderer leaving a crime scene would you really refuse hand over copies of the images to aid the police in their work? Run and cry to the media about how the big bad police were trying to infringe on your artistic and intellectual rights?

          As for my information, it came mostly from FindLaw, which is a resource for lawyers,
          http://caselaw.lp.findlaw.com/data/constitution/amendment05/14.html

          Also, for torte law on definition of “property” in eminent domain in non-land usage, see Ruckelshaus v. Monsanto Co in 1984. Just a little tidbit from that …

          “To the extent that appellee has an interest in its health, safety, and environmental data cognizable as a trade-secret property right under Missouri law, that property right is protected by the Taking Clause of the Fifth Amendment. Despite their intangible nature, trade secrets have many of the characteristics of more traditional forms of property. Moreover, this Court has found other kinds of intangible interests to be property for purposes of the Clause.” Thats right Ladies and Gents, intangible property is “property” under the 5th and 14th Amendments, as per the Supreme Court. As are copyrights and IP.

          Again, I have never once said that the government can just go seizing stuff all willy nilly, but just because there is a legal manner in which to do it doesn’t make my comment wrong. Reread my comments … “government seizure” and “warranted seizure” are in two separate sentences. And warranted seizure is in sentence discussing evidence regarding an actual crime. Context … its all about reading the context.

          @D. Tinder
          eminent domain isn’t for law enforcement at the basic level, it is only used via legislature or duly delegated 3rd parties. but yes, it does include ALL property, real and imagine, tangible and intangible. Also, my original comment regarding eminent domain was horribly skewed by the responses. I said that government has the right … which they do have the power under the rule of sovereignty, this is the trade off for your own rights, that the government can do what it feels is needed to promote the greater good. If you don’t think its a “right” try and fight them on it. Obviously, using eminent domain for something like this, or even in a drug raid such as you mention, would be overkill … but had the legal battle went far enough proper legislation could have seized the pictures (and all right pertaining thereto) in exchange for just compensation. See above with Ruckelshaus v. Monsanto Co in 1984, that eminent domain case went to the Supreme Court due to the parties arguing over what was a fair number for Just Compensation as held in the Amendments.

          In short …
          Do I like it? No. Do I agree with it? Sometimes, eminent domain pretty much saved this country during the Great Depression. Does it make me wrong in stating it as a fact? No

  9. cheyne b June 2, 2010 at 9:34 am #

    I am no pro photog by any means, but I do love the art. This is a scary situation in general, not just for pros but for anyone that enjoys photography. There are always two sides to every story and the truth is usealy in the middle somewhere. Where the students being insolent just for the sak3 of it?, yeah probably, but that’s their right. this prosecutor really over stepped the law but we also need to remember that a JUDGE had to sign the warrent and that fact is even more frightening than the prosecutor. we are living in a time where if we the people don’t stand together to preserve our rights whatever the situation may be, then we will see those rights taken away. The moral of the story is, it doesn’t matter why they said no, but that they had the right to do so.

  10. Mark Henry June 2, 2010 at 10:51 am #

    I don’t see this as an attack on photojournalism, as much as a prosecutor trying to do their job and get evidence of a crime that they are investigating. The prosecutor did not use proper procedure to procure the evidence (although a judge did sign off on the warrant, which clears the prosecutor of any wrong doing). This mistake was brought to the prosecutors’ attention and the issue was corrected, and now the prosecutor has a better understanding of the role of media and how it relates to law enforcement. This is exactly why we have a system of checks and balances, and it worked perfectly in this situation.

  11. Vinh June 2, 2010 at 9:52 pm #

    This reminds me of a similar case that occurred in 2005 involving a student photojournalist attending San Fransisco State University. The incident involved a student photograher documenting a group of students breaking into a car and stealing items from it.

    http://www.nppa.org/news_and_events/news/2005/02/vega.html

    In the end, prosecuters dropped all the charges after the students entered a civil compromise plea.

    http://xpress.sfsu.edu/archives/news/003883.html

    As for my opinion about the matter, I believe the newspaper has the right to decide on whether to release the photos or not. Walt H is right to point out that they were copies of unpublished images but its up to the newspaper to decide what to release and what to keep. Releasing those photos to the police would de-legitimize the newspaper to its readers and would probably ensure that the photographers will not have the access they would as an impartial witness to events.

    BTW, why were they rioting?

  12. Anonymous June 3, 2010 at 12:16 am #

    What does eminent domain have to do with this? If it were an eminent domain case, then why the search warrant? Search warrants are issued by the court for law enforcement to search for evidence of criminal offenses. Eminent domain has to do with the government, using due process, to legally confiscate property for government/public use or in some cases condemn property for public safety reasons—with compensation. Have you ever heard of a drug raid under eminent domain?

    The U.S. government most certainly may not seize anything it wants, anytime it wants. Might want to reread the Wikipedia article a little more closely. Back when I was in law enforcement, thing would have been a lot easier were that even close to being true. It ain’t.

    The government has no rights, it has powers and authorities. Citizens have rights. And the press, as childish and obnoxious as it sometimes seems, may take a stand to protect those rights. There is no “duty” for the kids to turn over photos. If the prosecutor needed them, there was a legal process available, as she later acknowledged. (Learned? She did not know this?). The duty is for the prosecutor to follow the law. And to know it.

    (Note that both Chase and the Washington Post writer confuses a right with a privilege, “citing the journalist’s privilege under the First Amendment” . Two entirely different things. The Bill of Rights contains no privileges.)

  13. D. Tinder June 3, 2010 at 12:18 am #

    Oops. Forgot to attach my name to the anonymous post above.

  14. chris June 3, 2010 at 12:21 am #

    Perhaps the editors of the student paper were refusing to just turn over the pictures for a slightly different reason. Maybe they were refusing so that the prosecutor had to justify why to the court and follow the subpoena process. This is perhaps what the editor of any commercial newspaper would also do and hence what they are taught to do in college? No need for seizure just follow the rules and if the courts agree and the lawyers agree then you get your photos and we all go about doing our jobs. If the newspaper staff didn’t do that then perhaps in the future when it did matter and they needed a source to reveal information to them that source would not because they believed (with good reason) that the newspaper staff would just roll over and reveal their source – which I think there are more than a few examples of newspapers not doing to great fanfare and which have helped establish the important role the press plays today.

    Were they being punks. I don’t see it that way.

    Were they being anti-establishment? Aren’t supposed to be? They are in college – they need to learn to question everything in order to figure out where they actually stand.

    And just because GWB expanded the power of the government to seize assets via his executive order only means that people on both sides of the isle ought to be running straight to their elected representatives and urging them to get that order overturned either by the current President or by legislative action.

  15. Nick Bicanic June 3, 2010 at 10:44 am #

    Is this a new fad – Pick on the Photog?

    Almost as if the search warrant is a legal right to violate.

  16. Bryan June 3, 2010 at 2:41 pm #

    And the nanny state grows…

    http://gizmodo.com/5553765/are-cameras-the-new-guns

  17. Mike June 25, 2010 at 7:07 am #

    eminent domain cannot be used to violate the constitution. When they take your house the constitution is what is forcing the govt to compensate the poor bastard that got screwed.

    You have to defend all the rights, even those you personally dislike for what ever reason, lest you risk losing all of your rights.

    Mike Glenn
    US Army OIF 2004-2005

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