Police charges disorderly conduct against photographer, Is police order a legitimate leash that should constrain First Amendment rights?

Photography is a form of free expression and an art of silent speech. It is a golden tool for journalists who use their freedom of the press to capture a thousand words and release it in the medium of their choice. Moreover, photographs are the most direct proof that an event or action occurred, which could be the springboard to a potentially newsworthy story. Placing a restriction that burdens the manner in which one displays, publishes, or broadcasts photographs is certainly an unconstitutional abridgment to the aforementioned freedoms. However, there are cases where reporters have been denied their First Amendment right to take pictures, even in a public setting where newsworthy events are happening on the spot.

A Penn State student and The Collegian photographer Michael Felletter was charged with a failure to disperse, disorderly conduct, a second-degree misdemeanor, and a third-degree misdemeanor because he chose not to leave the scene during a mass riot in the streets despite several police orders. [1] Instead of leaving, Felletter took photographs of the police officers as they arrested people and bascially followed the officers around. Felletter was merely fulfilling the assignment from his photo editor to take photos of the events that took place after Penn State's victorious football game in October. His intention for taking photographs was to capture a newsworthy topic. The fact that the event was newsworthy is a legitimate reason to provide Felletter with his First Amendment rights. When Felletter identified himself as a member of The Collegian staff, he said the officers didn't object to him being present. Later, State College Police Officer Nick Argiro told Felletter to leave the scene three times before he confiscated the photographer's drivers license. This implies that the officer wanted Felletter to stop taking photographs. Right then the officer demonstrated a restriction on the photographer's right to take these pictures, which were meant to be published in the Unversity newspaper. The officer's action leads ultimately to condoning the photographer from freely exercising his freedom of expression and eventual freedom of the press should his photographs be published. However, it is important to note that the officer clearly didn't make the judgment call to dismiss the photographer based on Felletter's character or intent. Both Felletter's character and intent seemed innocuous and unintentionally threatening to the rioters, so it is very unlikely that the officer dispersed the speaker's speech based on these two criteria. [11] Since it is difficult for law enforcers to spot out unlawful intent instead of arbitrarily conducting police procedures, it would seem easier for the police to censor all speech. That is a dangerous route that the law enforcers do not want to travel down. Arresting speakers for intent or character of their speech is unconstitutional because it takes a content-based approach to abridging speech.

Felletter wasn't trespassing on private property[4], nor was he harrassing any of the subjects he was photographing [5]. Both of these are ways that limitations could be placed on photography. Keep in mind that the riot is happening downtown out in the open where anyone outdoors would have seen it. That closes up the possibility that this case dealt with the tort law of intrusion because the streets are not a private location. [3] Also, there is no specific person claiming injunctive relief on the basis that Felletter's photos offended him or her by revealing private facts that would offend a reasonable person or not be considered concern to the public. [2] Clearly, there is no target that the photographer is trying to offend by taking pictures of the riot. However, Officer Argiro could reasonably argue that he was being portrayed in a false light because Felletter followed him around closely and took several shots over his shoulder. Although photographs are meant to capture precise and transitory instances [7], there's no telling whether or not Felletter tried to take as many pictures of Officer Argiro as possible to capture a moment when his actions appeared more malicious than they were intended to be. For instance, when Officer Argiro holds out two cans of pepper spray in Felletter's face and threaten to arrest him if he does not leave the premises, Felletter could have snagged a quick photograph and left the scene with a perfectly legitimate picture. The caption then could alter the photograph's meaning and end up portraying the Officer in a false light. However, this was not the case. It is merely my fickle imagination of the possibility in which the false light test could prevent Felletter from taking photographs.

Let's examine the act of taking pictures for a moment. There is no guarantee that taking photographs is an expressive activity. [6] After all, the photographs do not contain the meaning that one produced through internal thoughts, but they are captured forms of real life images that are outside of their ability to create or alter. Arguably, Felletter's First Amendment rights may have just been surrendered then and there because the law enforcers called him out on disorderly conduct. The police officers were trying to control the crowd in pandemonium, and the photographer's presence could instill more anger and hostility and add fuel to the riot. The way Officer Argiro puts it, Felletter's action of taking pictures "was causing the crowd to become more exhuberant [sic], excited, and destructive." [1] Then, Felletter mist be subject to the police authorities' order to stop taking pictures and leave the premises regardless of the fact that he just gave up his First Amendment rights to freedom of expression. In situations where the interest of the state in eliminating the danger produced from the speaker's First Amendment rights conflicts with the speaker exercising his or her First Amendment rights, the law enforcers hold the longer end of the stick. In other words, law enforcement officers make the on-the-spot decisions as to whether or not First Amendment rights of the speaker can be hampered if there is a hostile audience. [10] Once the police officers have full authority over the situation, they can charge the speakers exercising their First Amendment rights for disorderly conduct.

There are situations in which police officers' decision to charge for disorderly conduct is legitimate. For instance, in the City of Oak Creek v. King case (Wis. 1989), a reporter followed police officers through a road block to an airplane crash site. [8] A detective spotted the reporter and escorted him out. The reporter managed to break free, hop over a fence, and run up a hill to take pictures of the crash. When the detective caught up to the reporter and told him to leave, he refused. The reporter was arrested for disorderly conduct. This is a prime example of a way that the law enforcers can constrain one's First Amendment rights. The reporter trespassed in a location where road blocks were clear indicators that the site was not open to the public. Reporters do not receive preferential treatment. The public and the press are served the same way, and if a location is not open to the public, it is certainly not open to the media. That is a mistake on the reporters part in this case, so the charge of disorderly conduct was not unconstitutionally limiting the reporters' First Amendment rights.

However, law enforcers cannot charge speakers for disorderly conduct to mollify every hostile audience. In April, an undercover police officer, dispatched by the Harvard University Police Department, arrested two Harvard students.[9] Lisa Nieves refused to turn over photographs that were taken of the undercover police officer taking pictures of a student demonstration on public property. The cop promptly arrested her. Following the arrest, another student Patrick Keaney said if Nieves was going to be arrested he would have to go too. The undercover police officer does not provide clear reasons why he arrested Nieves, but one wild guess points straight to the fact that he wanted to prevent her from distributing those photographs of him. In the article, Nieves said her intent was to distribute the photos from the demonstration to the students. Therefore, the undercover cop would be in a sticky situation if it turned out he arrested her based on intent, which once again is unconstitutional.

Although there are instances where the police authority supercedes the speakers' First Amendment rights to prevent stirring up a violent audience, there lacks consistency and specificity in these police procedures. [12] Ultimately, arbitrarily charging speakers for disorderly conduct creates much vagueness in which there is no certainty whether or not the speech or expression is protected. This creates chilled speech, which causes speakers to say less speech, not more. In a free marketplace of ideas, speakers are entitled to the robust exchange of ideas, which should not be stifled even by vague police orders.


Sources:
[1] http://www.collegian.psu.edu/archive/2008/11/07/photographer_receives_misdemea.aspx

[2] http://www.rcfp.org/photoguide/intro.html

[3] http://www.jstor.org/stable/1342012?seq=4

[4] http://www.jstor.org/stable/1342012?seq=5

[5] http://www.jstor.org/stable/1342012?seq=6

[6] http://www.jstor.org/stable/1342012?seq=7

[7] http://www.jstor.org/stable/1342012?seq=11

[8] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=wisctapp2%5C1q00%5C99-2317&invol=1

[9] http://www.thecrimson.com/article.aspx?ref=523024

[10] http://www.jstor.org/sici?sici=0026-2234(197611)75%3A1%3C180%3AHCPCAF%3E2.0.CO%3B2-6

[11] http://www.jstor.org/stable/1287856?seq=7

[12] http://www.jstor.org/stable/1287856?seq=8