By Donald R. Winslow
© 2009 News Photographer magazine
DURHAM, NC (January 13, 2009) – The National Press Photographers Association's general legal counsel has sent a letter to Amtrak officials asking that railroad "take immediate steps to remedy the railroad's unconstitutional treatment of law-abiding photographers."
The action came after NPPA received complaints over the last few months from photographers who were told by Amtrak police officers that they were not permitted to take photographs of trains or stations. In some instances photographers were threatened with arrest or arrested when they failed to follow officers' commands to delete images.
The issue is likely to be tested in the coming weeks as thousands of media and tourists flood through Union Station in Washington, DC, for the upcoming presidential inaugural.
NPPA's general legal counsel Mickey H. Osterreicher wrote to Amtrak police general counsel David Domzalski asking the railroad to immediately issue a directive to all Amtrak personnel making it clear that the mere act of taking pictures or video is not unlawful, and that doing so provides "no basis for law enforcement or other transit personnel to take action against a photographer."
"As far as we can determine, there are no pertinent laws, rules, or regulations specifically prohibiting photography nor any Amtrak rules or regulations establishing a permit scheme," Osterreicher said.
"Given that photography of public areas is protected by the First Amendment, we believe Amtrak's actions are plainly unconstitutional. We are particularly surprised by Amtrak's actions in light of the fact that the MTA [New York State's Metropolitan Transportation Authority], which also patrols [New York's] Penn Station, abandoned proposed changes in rulemaking to prohibit photography in 2005, and its corporate counsel, Mary Mahon, ordered the MTA police to stop harassing photographers on its publicly accessible properties."
"I am concerned that Amtrak has ignored the First Amendment implications of their actions prohibiting photography," NPPA president Bob Carey said today.
"They are a publicly-funded corporation and this prohibition is very simply unconstitutional. And NPPA will continue to fight for First Amendment protection for photojournalists."
Amtrak was created in 1971 when the Rail Passenger Service Act was signed by President Richard M. Nixon. There are eight presidential appointees on Amtrak's board of directors who must be confirmed by Congress.
"The federal government currently appropriates $2.5 billion a year to run Amtrak. So I believe Amtrak certainly has more requirements at the First Amendment level since it is a quasi-public entity," Carey said.
Osterreicher said that Amtrak's public relations officer Clifford Cole told NPPA that Amtrak is "unaware" of any laws, rules, or regulations regarding restrictions on photography. Cole said there was a "policy" that only ticketed riders may take photographs and that photographers' actions may not hinder the operation, or cause any hazard to the operation, of the trains, and that the media must inform Amtrak of their intention to take pictures.
NPPA executive director Jim Straight said that Domzalski has not yet responded to the letter.
Osterreicher's letter was also sent to several organizations who share with NPPA an interest in protecting photographers' rights, including the New York Press Photographers Association, the New Jersey Press Photographers Assocation, the New York Civil Liberties Union, and the American Society of Media Photographers.
Last summer Fox 5's Tom Fitzgerald was on-camera doing an interview with an Amtrak public relations official in Union Station when a security guard walked up and told them they could not take pictures. Watch the video here.
