I wanted to follow up on Dave Statter’s post about the Miami Dade helicopter video and the possible violation of the photographer’s First Amendment Rights.
From a legal perspective – everyone – all of us – have a Constitutional Right to cover the news. The right is not limited to members of the press, but extends to everyone.
Included in that right is the right to photo and video things that happen in public, and particularly the right to film government employees doing their jobs.
When a government employee interferes with the exercise of that right, it violates the First Amendment rights of the photographer. Anyone who violates a photographer’s First Amendment rights could be facing a costly lawsuit in federal court.
Having said that, there are some things we as emergency responders are allowed to do with regard to photographers. We are allowed to create safety zones to protect members of the public. We are also allowed to establish reasonable work zones so that members of the public are not interfering with our operations.
These safety and work zones cannot be established just for photographers. They have to be zones that all members of the public are excluded from. Once they are established we can require that photographers remain on the side of the line where the public is allowed.
The video certainly shows how things can become ugly when the establishment of those zones is not made clear. I am not going to speculate on who was right or who was wrong in this case. Take away number one is – we need to avoid getting in this kind of situation in the first place!!!!
Take away number two is once we find ourselves in this situation we need to have some prepared language to use to explain what we are doing and why… such as “Sir, I need you to step back for your own safety… that prop wash could harm you. We need to move everyone back. This is for your own safety”.
Most professional photographers and many amateur photographers are well versed on their First Amendment rights – and know once you mention safety… and enforce the safety zone to everyone… they have to comply. Anything short of that is likely to result in some pushback as was the case here. “Because I said so”… is probably not a satisfactory response when someone’s Constitutional Rights are involved.
That photographer was doing nothing that justified the actions of MFD. If he had approached the ugly slime colored Pierce Quantum that would have been another story. But he was a safe distance.
what is so personal about an LZ. Sounds like MDFD is wanting to hide something.
the air rescue (helo) was there to transport a trauma patient (clearly); trauma protocols typically require removal of all clothing to visualize injuries and access infusion sites. the FD was attempting to ensure patient privacy.
Sounds to me like you are dancing around the issue and having a bet each way to look reasonable. Yes, your "take aways" are fine – but what do YOU think?
I don't know what MFD's SOP states in regard to Landing zones. The fact that traffic was passing between the photographer and the Helicopter leads me to believe that the photographer was more than a safe distance away. After viewing the video it is appears that the only one being "combative" was the Captain. You can notice blood on the Capt.'s Gloves when he appearded to push the photographer. The Captain's angry and over reaction to what could have easily been a non issue is at best difficult to justify and could give one reason to question his ability's and competence as an officer.
The truth is if that was your family member, you wouldn't a random person recording them being transported.
Now that i've calmed down, this is a simple case of a fire captain who went too far and is probibly going to loose his job or get demoted. the photographer was clearly in his rights to be taping and both members should be diciplined for this because numerous cars were passing by and the photographer was only confronted after they pointed him out. in florida any unwanted touching is battery and since he did it with a bloody glove that exposed the photographer to disease. calling the police for backup and lying about the circumstances in another issue and what about patient care, i never saw him give any info to the helo folks. This is a bad day for Capt smart who did a dumb thing. worry about the call not some fireshooter
What the FF did was far worse by attacking the photographer with dirty patient care gloves. Anyone else threatening someone with bodily fluids would be jailed with assault or even attempt murder. Whatever was on those gloves like Hepatitis could have resulted in grave harm to that photographer. I sincerely hope that photographer follows up if he was touched in any way by that FF.
Ron
Callin' me out… haha… OK. Here is my take.
As for whether the crew had a legitimate right to establish a safety zone to where the photographer was and beyond – I think the crew would probably have been justified in moving the preimeter back.
However I have some concerns about the way it was done and the reasons why it was done. Remember – safety and work zones… those are the two reasons. Some sort of vague sense of protecting patient confidentiality from a photgrapher standing 50 to 100 feet away is probably not going to fly… not when someone has a Constitutional right to be where he is and be filming government officials in their daily activities.
My sense is they were using safety as an “excuse” because they were really concerned about patient privacy.
Curt,
I've been thinking about this incident and the presence of public cameras fire and EMS incidents.
"It's just a camera"… or is it?
Unlike the world of law enforcement, where public cameras and public filming can have direct outcomes to legal processes, what are the impacts for fire and medical outcomes.
Thus, I openly ask, what power does a camera (or the resulting stills or footage) possess, to affect the outcomes of fire and EMS activities?
(For the sake of this open question/open discussion, let's presume everything being filmed is depicting correct, safe, legal procedures by the responders. Obviously, one big fat issue with cameras is when they capture people doing things they should.)
Note: Also presuming the person holding the camera isn't interfering with anything, via his physical presence. But what about the camera itself?
On behalf of the Attorney General, the Department of Justice would like to thank you for your many messages on law enforcement issues and activities and other matters of special interest to many groups across the nation. The Attorney General appreciates the fact that so many citizens have taken the time to express their views and thoughts on these important matters.
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http://cdn.photographyisnotacrime.com/wpcontent/uploads/2013/03/Garcia-v-Montgomery-Cnty-DOJ-SOI-03-04-13.pdf
Courts have long held that recordings made by private citizens of police conduct or other items of public interest are entitled to First Amendment protection. See, e.g., Glik, 655 F.3d at 84-85 (finding First Amendment right to record “clearly established”); Smith, 212 F.3d at 1333; Fordyce, 55 F.3d at 439; Blackston v. Alabama, 30 F.3d 117, 120-21 (11th Cir. 1994); Lambert v. Polk Cnty., 723 F. Supp.128, 133 (S.D. Iowa 1989).
Similarly, the Supreme Court has established that journalists are not entitled to greater First Amendment protections than private individuals. See,e.g., Nixon v. Warner Comm., Inc., 435 U.S. 589, 608-09 (1978) (“The First Amendment generally grants the press no right to information about a trial superior to that of the general public.”); Branzburg, 408 U.S. at 684 (“It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”)
the U.S. Department of Justice stepped in, issuing a 13-page statement of interest on behalf of Garcia and the Constitution making it clear where it stands on this issue:
• First, the United States urges the Court to find that both the First and Fourth Amendments protect an individual who peacefully photographs police activity on a public street, if officers arrest the individual and seize the camera of that individual for that activity.
• Second, the United States is concerned that discretionary charges, such as disorderly conduct, loitering, disturbing the peace, and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights. The United States believes that courts should view such charges skeptically to ensure that individuals’ First Amendment rights are protected. Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges.
• Third, the First Amendment right to record police officers performing public duties extends to both the public and members of the media, and the Court should not make a distinction between the public’s and the media’s rights to record here. The derogation of these rights erodes public confidence in our police departments, decreases the accountability of our governmental officers, and conflicts with the liberties that the Constitution was designed to uphold.
http://www.photographyisnotacrime.com/2013/03/05/usdoj-once-again-weighs-in-on-photographers-rights-issue/
Chief here is another look at this incident. If the captain was so concerned about the 300 ft safety zone then way did the engine ff set this boundaries up on the onset of this call. One can clearly see that 3 to 4 vehicles pass down the street and no one stops or questions them. Does Metro Dade need to make sure all engine companies know how to set up a LZ?
Chief – it certainly would seem to factor into whether they honestly believed a safety zone was necessary… or if it was a contrived effort to stop the cameraman from filming.
pete the heat
I agree. Might there have been a better way to accomplish that without bullying the photographer?
Mike
I am not 100% sure I understand your question – but let me throw this out. Would the Rodney King incident have occurred if the officers realized they were being filmed? That is the power of a camera to affect outcomes and change behavior.
"the FD was attempting to ensure patient privacy."
That's not the job of the fire dept. Besides, no one has any expectation to privacy in public. Period. News crews videotape EMS incidents thousands of times a week in this country.
Bill
I understand your sentiment – but to be truthful the FD does have to respect the HIPAA and medical confidentiality rights of the patient. Those are legal requirements. That is the job of the FD.
The bigger question is – was the photographer actually invading the patient's privacy (I agree with you, I do not believe he was)… and if he was how should the FD personnel have handled it. Placing a sheet over the patient should have addressed any concerns – and if medical treatment was being performed which would have made a sheet impossible – then someone holding up a sheet should have sufficed.
Just to be clear – the FD does have a responsibility to protect patient confidentiality and privacy when it is truly implicated… it does not appear that it was in this case… but reasonable minds may differ on that account.
What i see here is emotions of the Captain getting in the way of the calm, cool, and collected appearance that a Captain must portray. Now more than ever! There's already ambulances rolling with cameras in the patient care compartment now, dash cams, security cams, etc. Despite anyone's moral or ethical stance on the matter, it's a fact of life. Nowadays for me, it's almost uncommon to not see people holding up the cams capturing an LZ, strategic placement of sheets, blankets, salvage covers etc. works everytime. The humorous part of this video to me is that if the Capt. took a second to 'survey the scene,' he could have just had the pumper drive forward 10' and block all views from the videographer. Recently, we ran an EMS call at a very popular nightclub in a very busy area, girl's 21st birthday party. Said girl drank way, way too much and had a lapse in consciousness prompting a 911 call. Long story short, she was combative and violent, hitting, kicking, biting, and she spit right in my face under my goggles. All of us had to remind eachother that we were being filmed by every drunk yahoo in this bar and we better make this look better than textbook as we restrain her. Point is privacy in public places is quite literally reduced to physical barriers between onself and others, like a bathroom stall or outhouse. Other than that, best roll and train with the assumption you're being filmed…more than likely you are.
As the general counsel for the National Press Photographers Association (NPPA) I deal with these issues on a daily basis around the country. Having the opportunity to see the video and read the previous comments I agree that the best take away from this unfortunate but all-too-common incident is that departments need better guidelines and on-going training.
But that should just be a baseline beginning point. “Because I said so” is fine for your mother to say but paraphrasing the US Court of Appeal for the First Circuit: “A police officer [or other government official] is not a law unto himself; he cannot give an order that has no colorable legal basis and then arrest a person who defies it. So it is here: because the [photographer’s] activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights, [Captain Smart] lacked the authority to stop them.”
While the press may not have any greater right of access than the public, they have no less right either. If there was no actual perimeter established and vehicular traffic was allowed to pass closer than the photographer was standing, then there was no basis for ordering him to leave. The First Amendment is not absolute. It is subject to reasonable time, place and manner restrictions. So while it might have been reasonable for the Captain to ask the photographer to move back a few feet (if he indeed was in the way or in danger) it is unreasonable and unlawful for him to order him to leave because that order restricts far more speech (and photography is viewed under the First Amendment as a form of protected speech expression) than is necessary to achieve a legitimate government interest.
There is no reasonable expectation of privacy in public. That in fact is how we distinguish public from private. It is why surveillance cameras are allowed in public places. HIPPA applies to healthcare providers (including EMS personnel). Unfortunately there have been far too many misguided attempts by EMS to enforce those privacy protection requirements upon the press and the public who have no “duty of care” to the patient.
This incident is another teachable moment. Let’s hope that those who should know better learn from it.
Does safety indeed become a situation where you can exclude press? Public, yes, but I don't think Safety is.
From what we as PIO's are being told, the only exclusions allowed for press (Leaving out the arguement of "What is the press") are for a member of the press on private property (Tresspass), interference (Reasonable work zone) and exclusion for a crime scene.
Safety, according to all of the PIO classes anyway, is not a reason to exclude press.
Is there a statuatory allowance, or case law you are aware of for the safety exclusion?
I have photographed many of these situations safely from publicly accessible places. The disturbing thing about this case in Miami is that there is traffic freely passing by and that the photographer is on the opposite curb of a completely open road. I do not believe that the phographer was in a restricted emergency work area if cars were driving by. And ironically, WSVN-TV was showing the victim on television in far greater detail than could ever be photographed by an iphone across the street.
What I would want and what is legal aren't the same thing. This captain was completely wrong and will be lucky to keep his position.
Robert
I have never researched that specific issue – but I am going to repost this question as a burning question – and when I do we can more fully research and answer it. However, there are some faily obvious logical flaws with the reasoning of the folks who taught your PIO class. In fact I am suprised by their conclusion. So they told you a film crew has a First Amendment Right to enter into a building that is on fire? Or an unsecured area at a shooting? Or into a hot zone at a hazmat incident? Seriously? And we would only be able to exlude them based on the crime scene or interference exclusions?
To me – allowing a film crew into an unsafe area at an incident IS interfering because if they get hurt we have to stop what we are doing and deal with them…
Here is some more bad news…. the Supreme Court has made it clear – the right to film and cover the news is not limited to the media – it extends to everyone … EVERYONE… so if we have to allow the media to go somewhere that is unsafe… then everyone has the same right… a 13 year old with an iPhone camera has the same right as an NBC news team.
Anyway… I digress.
The Supreme Court has been clear that the First Amendment right to film is NOT without limits. It is subject to "reasonable time, place and manner" restrictions. Allowing anyone with a camera… (or anyone without a camera for that matter… because the right to cover newsworthy events is not limited to thise with cameras)… to go into unsafe areas – would seem to me to be pretty unreasonable…. or said another way – it would seem pretty reasonable for firefighters to exclude the public from unsafe areas at emergency scenes.