On Friday, June 12, 2015 the NPPA submitted the following Memorandum in Opposition to a proposed bill that would require written permission from anyone being treated by a first responder (police, fire, EMT) in a public place prior to the "making or broadcasting" of their image. NPPA asserts, that if enacted, such a law would be an unconstitutional prior restraint and an abridgment of the First Amendment. This bill will be considered by the NYS Assembly Codes Committee on Monday, June 15, 2015. Please contact Assemblyman Joe Lentol at 518.455.4477 to voice your opposition.

The National Press Photographers Association (“NPPA”) strongly opposes A.5161C and S.4622A. If enacted, such overly broad legislation goes against public policy and will cause a very serious threat to our New York State members who photograph and record people as part of their jobs. This bill granting “every patient, in or being served by a health care facility . . . the right to have privacy in treatment and in caring for personal needs, including the making or broadcasting of a visual image of a health care procedure including the patient” (emphasis added) will unconstitutionally deprive photographers and others of the right to exercise their free speech and press rights under the First Amendment of the U.S. Constitution and Article I, Section 8 of the New York State Constitution.

As the heart of the media industry, New York State, has always been at the forefront in upholding the First Amendment and its concomitant rights. It is well settled that when a person is in public place they have no reasonable expectation of privacy. That is one of the basic ways by which we distinguish public from private and why the government and others are able to use surveillance cameras and other devices to photograph and record public activities. Substantially expanding the breadth of a right to privacy in a public place creates a burdensome statute that will have a crippling and chilling effect on expressive speech and news coverage.

It is one thing to impose obtaining an “express written consent” requirement upon a “health care facility” where a reasonable expectation of privacy may exist and quite another to impose that same requirement on an “ambulance service,” “voluntary ambulance service,” or “certified first responders,” who often render treatment in public places where no such expectation of privacy exists.

Such legislation imposing civil liability on the “making” and broadcasting of medical treatment in public place, unless the entity providing medical care obtains a separate written document giving permission from the patient creates an impermissible prior restraint on those making or broadcasting those images and will only lead to disruptions in medical treatment and disorderly circumstances at the scene of news events and other matters of public concern.

Under this bill, journalists and citizens with cameras covering these events would have to cease their activity upon the arrival of any certified first responders (including police) thus effectively barring coverage of many newsworthy events. Imagine what little visual news coverage there would have been after the events of 9/11 had this law been in effect in 2001? The tragedy that took place at the Boston Marathon bombing and the compelling images the public was able to view would have been prohibited as would any broadcast during a live sporting event where a player or spectator had been injured and was being treated.

These unintended consequences arise in a well-meaning but misguided bill that is not narrowly tailored and fails to leave open alternative avenues of communication. Its enactment will change the very nature of news coverage in New York and in turn cause extreme economic harm to our members and other visual journalists, who in some cases risk their lives to inform the public. The bill also imposes undue burdens upon the very first responders who are providing care to the injured in a public place. Do they waste precious moments trying to obtain the required written permission or other vital seconds trying to stop people from recording? It is a Hobson’s choice in which everyone loses. Such scenarios run counter to the public interest and violate basic Frist Amendment principles.

The NPPA strongly opposes this legislation. While we recognize that patient privacy is important in a private facility we are confident that an intrusion upon such rights may be more properly addressed and remedied by already existing state law. As drafted, this bill abridges core First Amendment values and precludes the public’s right to be informed. Therefore, the proposed legislation should, be amended to address these fatal flaws or defeated.

Respectfully submitted,
Mickey H. Osterreicher
General Counsel
National Press Photographers Association

June 12, 2015

The NPPA is a 501(c)(6) non-profit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. NPPA’s approximately 7,000 members include television and still photographers, editors, students and representatives of businesses that serve the visual journalism industry. Since its founding in 1946, the NPPA has been the Voice of Visual Journalists – vigorously promoting and defending the rights of photographers and journalists, including intellectual property rights, as well as freedom of speech and of the press in all its forms, especially as it relates to visual journalism.