DURHAM, NC — The National Press Photographers Association, through its attorney Kurt Wimmer of Covington & Burling, has submitted a legal brief to the Metropolitan Transit Authority of New York opposing the proposed photography ban on the New York subway system. The NPPA was joined by the Society for Professional Journalists, The Reporters Committee for Freedom of the Press, The Radio-Television New Directors Association, and the New York Press Photographers Association.
In recent days officials have backed off on the plan to totally ban photography on the transit system in order to review it more, saying that the measure may not be enforceable. Metropolitan Transportation Authority officials said the original ban was proposed at the request of police, who wanted to prevent terrorists from gathering information on the system.
The NPPA has opposed the rule change since it was first suggested in May. The legal brief filed on September 8 is a formal legal document specifically connected to the public comment period. The proposed changes would ban all photography by uncredentialed photojournalists and other unauthorized individuals on all NYCT property. NPPA told MTA that its "proposed photography ban will significantly hinder the press's ability to report on newsworthy events that occur on NYCTA property. And when reviewed against the requirements of the First Amendment, the ban itself is unconstitutional." A key component of the NPPA's opposition is the rule's alleged exception for photography by credentialed journalists. While this recognizes the issue, it does not solve the problem.
First, news photographers cannot predict when breaking news will occur and, when news does break, may be unable to obtain the necessary credentials or authorization. According to the New York City Police Department, the press credential application process "takes approximately 3 to 4 weeks" to complete.
Second, even with the exceptions, the proposed rule is a prior restraint on newsgathering because it creates the opportunity for an MTA official to deny permission to photograph if he or she disapproves of a story, a media outlet, or an individual photojournalist. There is no mechanism for appeal of such a denial.
The NPPA believes in the right to free expression for all photographers, not just journalists. The First Amendment protects expression by all photographers, whether photojournalists or not. Because the proposed rule severely restricts the right to take pictures on NYCTA property thereby infringing a photographer's freedom of expression it violates the First Amendment.
Ironically, two men were arrested last month for plotting to attack the New York subway system. According to The New York Times, they were found with drawings of the entrances and exits subway system. This emphasizes that preventing photography would have little or no impact on someone who is determined to cause harm.
The NPPA, SPJ, RTNDA, RCFP and NYPPA urge the Metropolitan Transit Authority to reject the proposed photography ban. We again encourage our members and all interested members of the public to submit their comments to the MTA.
Contact NPPA vice president and Advocacy Committee chair Alicia Wagner-Calzada at [email protected] for more information.