Federal Protective Services police officers chased out two journalists from a Boston courthouse Tuesday, claiming they had no legal right to record anywhere inside the federal building.
However it appears they had every right to record within the courthouse, judging by the Federal Protective Service Security Guard Information Manual, which was sent to PINAC earlier today in response to a prior instance of a federally contracted security guard banning photography outside a federal courthouse in Miami.
There is nothing in the 96-page manual that states that news photography is illegal in federal courthouses outside courtrooms.
In fact, there is barely anything in the manual relating to photography other than the following convoluted section on page 75 that we’ve already seen that fails to differentiate “news” photography from “non-commercial” photography as well as provide a definition for commercial and non-commercial photography.
Considering that many photographers don’t even know the difference, we can’t exactly blame them. But maybe we can encourage the feds to further clarify this section to prevent future embarrassing encounters between citizens with cameras and authorities who are clueless of the policies they are paid to enforce.
For starters, photos done for “news purposes” fall into the “non-commercial purposes” category, contradicting subsections (a) and (c). But so do family snapshots, artistic photos and anything that is not going to be used in an advertisement.
So contrary to what many believe, just because your photos or video end up on a news site supported by advertising doesn’t make that commercial photography.
However, if those photos or video are used in the actual ads, then that would be considered commercial photography.
Mickey Osterreicher, general counsel for the National Press Photographers Association, provided the following explanation when I asked him for some quotes for my upcoming book last month. Editorial photography is regarded as news photography.
EDITORIAL vs. COMMERCIAL
Editorial photography is broadly defined as an image or recording being used to illustrate a newsworthy story. Such works are normally entitled to First Amendment protection under the free press clause and include not only news but sports, entertainment, educational and historical events as well as any images depicting matters of public interest.
Commercial photography is generally viewed as being used in advertising or endorsing a product or event. It also may include images or recordings made available for direct sale or sold as part of a retail item such as a tee shirt or coffee mug.
One major distinguishing factor is that when used for editorial purposes a model release is not required from any subject depicted in the images or recordings, where a model release would be required to protect the photographer and user of such images or recordings for commercial purposes.” Without a release or consent from those being shown the photographer or user of such images or recordings may be liable for a claim of violating a person’s right of publicity or invasion of privacy.
Because some images are sometimes used first in an editorial context and then later in a promotion or other commercial use it is always best to err on the side of caution (whenever possible) and obtain a comprehensive model release.
The problem is, everybody seems to have their own definition of what constitutes non-commercial photography, including the Los Angeles Metro system, which permits non-commercial photography but forbids student and educational photography without a permit, even though they should be considered non-commercial photography.
The general public may shoot film and digital photographs and videotape within the public areas of Metro stations for personal, amateur, and non-commercial use, except in emergencies.
In special circumstances such as a declared elevation of the Homeland Security Advisory System or when a person’s actions are deemed suspicious, persons may be questioned by law enforcement or Transit Security personnel to determine if further investigation or action is necessary.
Commercial, educational and student photography and videography are not permitted without the prior authorization of the Metro Film Office. For more information visit Filming on Metro.
You would think these policies would be fully revised by attorneys before becoming official, but that doesn’t seem to be the case.
The journalists in the above video were from The Bay City Examiner, whom we read about last month when they were threatened with arrest by Boston police for making public records requests. They were in the lobby when they were ordered out of the building.
The Federal Protective Services manual is published by Immigration and Customs Enforcement, the same agency overseeing the incident earlier this month when a security guard forced a man’s camera off after pointing to a sign that stated the same policy from the manual.
An all-day call flood to an ICE public information officer in Orlando resulted in a Washington DC-based press secretary from ICE named Christopher Bentley contacting me to inform me that ICE was not responsible for the guards’ behavior because ICE was merely renting the building from the General Services Administration.
He even gave me the number to the GSA press office, urging us to refocus our energies in that direction, so if you want to find out how we can go about getting this policy clarified, call (202) 441-0607.
However, considering ICE published the FSP manual, perhaps Bentley can also be of assistance at (202) 272-1224 because if we can get this policy clarified, that would save them from potential future lawsuits.