By Mickey H. Osterreicher, Esq.
On May 20, 2004, New York City's Metropolitan Transportation Authority (MTA) proposed a ban on photography and videotaping on buses and subways as a terrorism-prevention measure. The new policy, if approved, would make photography on the historic subway system punishable by a $25 fine and/or up to 10 days in prison. Journalists could get exemptions with New York City Police Department press credentials or permission, but there is no appeals process for anyone denied such permission.
In that same month the NPPA Advocacy Committee, which was created in November 2003 to promote awareness and timely responses to issues threatening news photographers, issued a statement opposing the measure. The NPPA was joined by the Society for Professional Journalists, The Reporters Committee for Freedom of the Press, the Radio-Television News Directors Association, and the New York Press Photographers Association.
On September 8, 2004, the NPPA, through its attorney Kurt Wimmer of Covington & Burling, submitted a legal brief to the MTA opposing the proposed ban. In that formal legal document, presented as part of the public comment period, NPPA stated that MTA’s proposed photography ban would "significantly hinder the press’s ability to report on newsworthy events that occur on NYCTA property." The ban itself is unconstitutional, NPPA argued, when reviewed against the requirements of the First Amendment. Part of the NPPA’s opposition was the rule’s alleged exception for photography by credentialed journalists. According to the New York City Police Department, the press credential application process "takes approximately 3 to 4 weeks" to complete, making that exception a moot point for anyone wishing to take a picture in the decisive moment.
Less than a week later the New York Daily News reported that "officials are backing off from plans for a total ban on photography in the subway system." While the MTA stated that "the measure was aimed at preventing terrorists from gathering information," some officials there believed that "a total ban may not be enforceable" and were "working on crafting a more limited restriction."
In late November, just when everyone thought it was safe to take his or her camera back into the subway, the MTA posted the subway ban in the rule changes register beginning the "official" comment period despite its earlier statement. That comment period will end on January 10, 2005. It is widely believed that the MTA chose the holiday season as a time when people had better things to do than post comments in opposition to such a ban.
"The First Amendment protects expression by all photographers, whether photojournalists or not," NPPA said in its statement. "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."
"This is part of a disturbing trend by government entities which has led to increased harassment of photographers engaging in perfectly legal activity," said Alicia Wagner Calzada, NPPA vice president and Advocacy Committee chair. "Without real solutions, officials and police are turning to efforts that will limit free press and free expression, but have no real effect in the fight against terror."
For more information or to view the discussion list about the rule change, go to http://www.subchat.com/read.asp?Id=22870.
Osterreicher, now a lawyer in Buffalo, NY, and an NPPA member since 1972, is a member of the Advocacy Committee. He’s been a photojournalist for more than 30 years, including at WKBW-TV7. He can be reached at firstname.lastname@example.org.
UPDATE: Todd Maisel, the NPPA associate director for Region 2 and a staff photojournalist for the New York Daily News, wrote an Op/Ed article on the status of the proposed photography ban and its implications in the December 31, 2004, issue of the Daily News.