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Criminalizing Photography Is Worrisome

By Ben L. Kaufman · September 14th, 2011 · On Second Thought
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Until the other day, I thought Cincinnati police officers were too bright to confiscate cameras in a public place at a public meeting to which the public was invited.

Hell, the owners of the cameras weren’t disrupting the meeting or photographing coppers using excessive force.

But I was wrong. One of Cincinnati’s finest took two voters’ cameras on orders from U.S. Rep. Steve Chabot (R-Westwood) or people working for Chabot. It was a town meeting and Chabot was the speaker.

God knows what Chabot was afraid of; no one was ordered to give up other recording devices. But the servile cop did as told. One was a camera phone from David Little of ProgressOhio. The other camera belonged to Liz Ping, videotaping for the Democratic Congressional Campaign Committee

The Enquirer’s Howard Wilkinson said, “Chabot's people had put up signs on the door saying no cameras allowed, although at least two media outlets were there videotaping and taking photographs.”

Maybe Chabot realized that the two people with cameras were no friends of his reelection.

Wilkinson also reported that Chabot's staff had asked for a Cincinnati police officer to be present — because, as a Chabot staff member explained, the House sergeant-at-arms had suggested that House members coordinate security with local law enforcement when House members held public events.

That’s a hoot. It’s the Tea Party and other conservatives who have been aggressively disrupting legislators’ hometown meetings around the country.

But that was North Avondale. Chabot issued no such orders at his Westwood meeting.

Someone has to take that cop aside and explain what country he’s in and how we behave in public. Or, if his superiors are proud of his actions and wish more officers would respond with similar alacrity, then the new chief needs to get and/or do some in-service training.

Otherwise, Cincinnati is inviting another costly court defeat on First Amendment issues. How the city responds could depend on what the police internal investigation discovers.

Little said the officer was sent there by his superior; it wasn’t private duty. What’s ironic is that no one turned off Little’s confiscated cell phone. He said he has voices and images from the entire meeting, including conversations among Chabot aides and the officer.

There is no point in trying to explain anything to Chabot.

As Wilkinson reported, “Judson Phillips, a national Tea Party leader, called Chabot a ‘moron’ on his blog.” Phillips didn’t leave it at that: “First, you can not confiscate the property of a private citizen without a warrant or some other due process. Second, and I will type this slowly just in case Chabot is reading this so he will understand this. Photography is not a crime.’

The local blunder, however, is not an isolated incident.

Nationally, police appear to be arresting or otherwise interfering with photographers, even when the photographers are on public property taking pictures of people and events visible to the public.

Last week, NPR reported on how Mall of America in Minnesota uses a private anti-terrorism firm that intimidates people who its wannabes think act suspiciously. That includes taking photos and videos of the tourist attraction.

Dumb as that is, these same corporate thugs then involve local police and the FBI, assuring years or lifelong files as someone who excited anxieties about about terrorism. Instead of telling Mall of America to back off, police and the FBI seem happy to jump right in. This is the same FBI office that couldn’t figure out what to do in 2001 with information that suggested someone wanted to fly a hijacked jetliner into the World Trade Center towers.

Coincidentally, NPR reported, most of the persons detained at Mall of America had dark skins or otherwise suggested their family names weren’t Anderson, Swanson, or Pedersen.

Unlike the Mall of America’s abuse of shoppers and tourists, the assault on photographers’ rights coincides with video recording images of police excessive force, according to websites that track this activity.

It’s intimidation; few arrests or detentions survive challenge.

Charges usually are dropped. Often, the behavior is simply thuggish and perps apparently are not the brightest members of the force. (A random thought: Brits refer to the police “service,” we call it the police “force.”) I don’t think this began with the videotape of the LAPD beating Rodney King in 1991, but it has become better known now that videos go viral with new technology.

I have no idea how often American police and other authorities interfere with our right to use cameras in public, but there is a steady trickle of stories about intimidation of news photographers. It’s been a public scandal in Britain for months or years; good reason to go elsewhere on vacation unless your alternative is Mall of America.

A recent incident from California’s Orange County reflects this trend, as reported on the nonpartisan journalism Poynter.org:

“Long Beach (Calif.) Police Chief Jim McDonnell is defending his officer who detained a Long Beach Post contributor for taking pictures of an oil refinery on June 30. ‘If an officer sees someone taking pictures of something like a refinery, it is incumbent upon the officer to make contact with the individual.’ Detaining photographers for taking pictures ‘with no apparent esthetic value’ is within Long Beach Police Department policy, the chief says.

While there’s no training that helps officers to determine whether a photo subject has ‘apparent esthetic value,’ police make such judgments ‘based on their overall training and experience’ and will generally approach photographers not engaging in ‘regular tourist behavior,’ says McDonnell.”

The OC Weekly responded, “The chief is right about this: Those ugly, rusty, stinky refineries do have no apparent aesthetic value. But they can obviously generate much public interest, which is why McDonnell recently received a letter from National Press Photographer’s Association stating it was perplexed the former LAPD official holds ‘the misplaced beliefs that photography is in and of itself a suspicious activity.’”

Poynter’s Julie Moos drew on the Associated Press and Wall Street Journal for this related item: “Long Island photojournalist Phil Datz has been officially cleared of the obstruction charges filed against him after he continued to record police officers when they asked him to stop. Datz was arrested July 29 while taping the end of a police chase in a public area. The Suffolk County Police Department announced last week it would drop the charges and require officers to go through media relations training.” That’s a lone positive note in this litany.

Last year, Ohio State student photographer Alex Kotran was detained for photographing attempts to corral escaped cows on campus. The student paper, The Lantern, reported his version: “As Kotran reached the athletic fields where the cows were being chased by police and OSU workers, a woman wearing a School of Agriculture shirt confronted him . . . It was 2 p.m. She told him that he was not allowed to take photos of attempts to corral the cattle. She tried to block him from taking photographs . . . Kotran explained that he was a photographer for The Lantern, that where he was standing was public property, and that if she wanted him to stop taking photos, she should summon police.

“That's exactly what she did. Kotran was cuffed and held for 10 minutes; police said the area in which the business freshman was shooting — about 100 yards away from the loose cows — was too dangerous. Campus police say an investigation is ongoing, and say Kotran was not arrested but simply detained.”

Bullshit. He was not free to leave.

If the First Amendment is too complex, try the Fourth Amendment on unreasonable seizure. Student Press Law Center Executive Director Frank LoMonte told the Lantern that police will have to prove that Kotran was contributing to the hazard to justify his detention. Meanwhile, two of Kotran's photos from the incident landed on the front page of the April 22 Lantern. He moved when told to move, but continued to shoot from another public space. Good man.

To its shame, however, OSU’s publications committee said it would not provide a lawyer if Kotran were charged with criminal trespass or anything else in connection with his detention. Almost as bad, it seemed willing to go along with demands that approved Lantern journalists carry press cards so that anyone else can be treated as criminal when they take photos in public at OSU. It was not clear whether OSU disciplined Kotran; he couldn't be reached and OSU didn't respond to an email asking that question.

Kotran had Lantern credentials. A lot of good they did them when embarrassed OSU officials wanted to prevent news of the escaped cows. Press cards are useless. Cops and others ignore them at will. They confer no rights not already available to anyone. Maybe they win a courtesy, but that’s about all.

When authorities want to block the news media, they do it with a sense of impunity that it would take a U.S. Supreme Court ruling to diminish.

In 2009, Ohio U photojournalism student Eric Jones was arrested when Athens police objected to him taking photos of the efforts to break up a block party gone bad. The Athens News quoted Jones as saying, "I kept telling (the officers) that I was a journalist … I tried to make it very clear that I was a journalist and not a participant."

Police charged Jones, 21, with assaulting a police horse, participating in a riot, and obstructing official police business. Each charge is a first-degree misdemeanor punishable by up to six months in prison and a $1,000 fine.

Jones told The News that "Our (photojournalism) program always encourages us to go out and cover local events."

Officers said that Jones disobeyed police orders and assaulted a horse with his camera. He was using a costly Canon 5D with a stubby 28mm lens. The News said Jones was especially baffled by the assault charge.

"I was told later that it was my camera… They said the lens gave the horse a gash. I couldn’t believe it."Jones said he only came close to horses when the mounted officers were running them through the crowds.

Now it gets weird or predictable.

The News quoted Athens Police Chief Rick Mayer saying that if photographers didn’t leave when asked, they could have been subject to arrest, even if they weren’t overtly breaking any laws. "It doesn’t matter who you are," Mayer said. "You can’t go violating the integrity of the scene." He noted that officers let photographers back into the street to get shots of the damage once the area was cleared.

Great. Photos of damage but not of police in action.

The News quoted Will Klatt, an OU senior who said he saw Jones’ arrest. "All that s*** went down on the grass, on private property," he said. Klatt said he saw an officer hit Jones with a baton before "harshly shoving" him to the ground.

The News said police confiscated Jones’ camera and memory card, along with 100 or so pictures of that night.

The Athens Post reported that Jones accepted a plea bargain in Athens Municipal Court: no contest to obstructing official business and obstructing a police horse. Jones — who spent two nights in jail — was sentenced to 90 days but 88 were suspended. He was charged court costs and a $750 fine plus 100 hours of community service.

The charge involving the horse was reduced because Jones said he lost his balance and tried to steady himself; police said it has evidence he was not trying to harm the horse. Jones said he didn't expect to be expelled from OU and the conviction could be can be expunged in a year. Jones couldn't be reached to find out what happened to his images; OU didn't respond to questions.

Curmudgeon notes:

• “No jobs were created . . . “ The drumbeat of that falsehood is everywhere. Reporters know it’s not true. Talk show hosts know it’s not true. Editors know it’s not true. The government reported that there was no gain in jobs during August; as many were lost as created. To equal the number of jobs lost, tens of thousands were created. Words matter.

In the same way, “federal funds” and “government funds” don’t exist. It’s all taxpayer money. What would happen to news reports and audience reaction if that were the preferred phrase, as in, “billions of your taxpayer dollars were misspent and stolen by contractors in Iraq.”

Then there is “food insecurity.” How about “hunger”? or “Supplemental Nutrition Assistance Program”? That’s the new euphemism for Food Stamps.

And finally, the news media’s embrace of the GOP denigration of Obama’s health care reform: “Obamacare.”

Before that, there was “Hillarycare.” Both are “federal takeover” of health care in the minds and mouths of critics and echo chambers in the news media and cable TV.

As pollsters learn, when respondents are asked about government health-care reform, Medicare and the like, they like it. When asked about the same things under Obamacare, they don’t.

Words matter.

• Why do the news media continue to perpetuate the fantasy of medical record confidentiality? There is none.

Maybe, just maybe, there was limited risk if I paid cash and my physicians kept my records on paper in their offices. The moment an insurance claim is made, poof! All it takes today is an insurer staff or vendor error or sabotage to put patient records online; the California hospital’s ER incident reported last week won’t be the last.

There, supposedly private patient records remained online for a year before anyone at the hospital realized it. And that doesn’t begin to assess the ease with which celebrities’ computerized medical records can be obtained and sold to journalists or websites that feast on diseased flesh and minds.

I wrote a court story years ago about a medical record privacy failure involving a suburban Cincinnati family. The wife went to an emergency psychiatric service. There, a physician took careful notes about her anxieties and their apparent causes, including sexual relations with her husband’s brothers. Those notes were clipped mistakenly to the claim form sent to the husband’s insurer. The insurance company forwarded the notes to the unknowing cuckold with the routine notification of his wife’s claim for emergency psychiatric care. He left home.

Those were the old days of paper records and some naive presumption of privacy. Today, the shift to electronic medical records guarantees access rather than privacy. Let’s consign “privacy” and “computer security” to the waste basket with “bullet proof” for body armor worn by law enforcement.

None of what I’ve written here opposes the momentum toward electronic medical records (EMR). My name’s not Ludd. I’m not a Cincinnatian. I’m a bred in the bone Minnesotan, from the Land of Sky Blue Waters, 10,000 Lakes and Mall of America.

My concern is the knowing misrepresentations by the news media. Where EMR improve care, I’m all for it. If EMR save money that is used to improve care, I’m all for it. Loss of any privacy is a price I’ll pay; feel-good federal privacy law and care providers’ compliance aren’t worth a damn.

• Friday’s New York Times makes a curious distinction in the way it reports a new and intriguing skeleton was uncovered in South Africa. It says paleoanthropologist Lee Berger “discovered” the skeleton but that his young son, Matthew, “found” it while chasing his dog.

It’s sort of like a scandal that someone in Ohio uncovers but it’s not discovered until The Times writes about it. I wonder what verb The Times would have chosen if the dog had brought home the tell-tale bone.

I wish The Times had told me what kind of professor Lee Berger is at South Africa’s Witswatersrand University or that he is an American paleoanthropologist working there.

Google was little better. Screen after screen told me how Berger uses Google in his work. I finally found his bio on a South African site on the fourth or fifth screen of Google self-congratulations.



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