A win toward the right to photograph at the U.S. border
On Tuesday, the U.S. Court of Appeals for the Ninth Circuit revived a lawsuit filed by two photographers against Customs and Border Patrol regarding CBP policies on photography at the border and joined the growing chorus of federal circuits holding that the First Amendment protects the right to record law enforcement officers in public. The court ruled that it is unconstitutional to limit photography at the U.S. border, vacating the dismissal of the case and remanding it back to the federal district court for further proceedings.
The National Press Photographers Association joined the Reporters Committee in an amicus brief along with a number of other media organizations. The case, Askins v. U.S. Department of Homeland Security, was brought by the ACLU involving the right to photograph at the U.S. border.
The amended complaint argued that the Customs and Border Patrol policies limiting photography near the border are unconstitutional, stressing the important interest in covering the border as well as the right to record the actions of police and CBP officials.
In its ruling, the Ninth Circuit panel held that “the First Amendment protected the right to photograph and record matters of public interest,” an argument the NPPA has been stressing for years. When government restrictions on First Amendment activity are “content-based,” those restrictions must be narrowly tailored and are only upheld if the government meets the burden of proving that the restrictions are the least restrictive means available to further a compelling government interest. The court held that the CPB’s justifications for its photography restrictions, which included broad assertions such as “border security” and “protecting the United States territorial sovereignty,” were conclusory and “too thin.”
“We are very pleased that the Ninth Circuit found in favor of the plaintiffs and reinstated this important case,” said NPPA general counsel Mickey H. Osterreicher, adding “but there are still serious challenges ahead to successfully upholding this very important issue.”
Case supports public release of courtroom videos
Also on Tuesday, the NPPA joined in the Reporters Committee amicus brief filed in Perry v. Hollingsworth. This case involves a San Francisco radio station, KQED, that in 2017 moved to unseal the courtroom video tapes recorded during the Proposition 8 (a bill making same-sex marriage illegal) trial in a California federal court where it was ruled unconstitutional). In 2012, the U.S. Court of Appeals for the Ninth Circuit decided to keep those tapes under seal.
The amicus brief asserts that public release of the videotapes would serve the values of openness that are at the heart of the First Amendment and common law rights of access. It also argues for unsealing the tapes because they would be more informative when used by the media than would just a transcript of the proceedings.
The following groups joined the Perry vs. Hollingsworth brief: American Society of News Editors, The Associated Press, Association of Alternative Newsmedia, Bay Area News Group, Boston Globe Media Partners, LLC, Cable News Network, Inc.,California News Publishers Association, Californians Aware, The Center for Investigative Reporting, Dow Jones & Company, Inc., The E.W. Scripps Company, First Amendment Coalition, First Look Media Works, Inc., Fox Television Stations, LLC, Gannett Co., Inc., GateHouse Media, LLC, Hearst Corporation, International Documentary Assn., Investigative Reporting Program, Investigative Reporting Workshop at American University, Los Angeles Times Communications LLC, The McClatchy Company, The Media Institute, MPA – The Association of Magazine Media, National Press Photographers Association, National Public Radio, Inc., The New York Times Company, Online News Association, POLITICO LLC, Radio Television Digital News Association, Reporters Without Borders, The Seattle Times Company, Society of Professional Journalists, Tully Center for Free Speech, Univision Communications Inc.