Defending your right to be present

The recent altercation between activists and photojournalism student Tim Tai at the University of Missouri brought to light both a mistrust of the media and the difficulty some photographers encounter in the field. Remaining calm and respectful while facing those who are suspicious of you and don’t understand your legal right to observe is difficult for both inexperienced and seasoned photographers. I asked Mickey Osterreicher, General Counsel for the National Press Photographers Association, for his advice on how photojournalists can navigate such situations.  

(Some of the answers below include excerpts from NPPA’s statement https://nppa.org/node/72843 as well NPPA’s Code of Ethics https://nppa.org/code_of_ethics)

Ann Hermes: It is often difficult to know when to stand your ground as a journalist in a confrontational situation and when it’s time to back down. Are there clear warning signs that your safety is at risk in such situations, and at what point is it appropriate for a photographer to involve the authorities?

Mickey Osterreicher: It is very difficult to be unobtrusive when using large professional cameras, but acting professionally and with purpose will often convey your right to be present. In terms of practical advice, aside from looking for compelling stories and images, make sure you maintain situational awareness or, in simpler terms, know what is going on around you and how it might affect your safety. Not only is it important to be aware of what the police are doing but also others around you such as demonstrators. As we saw in this case journalists have been attacked by those who did not want to be photographed or just did not like the media.

It is also very important to pay attention to your gut instinct and always look toward having a safe way out of the crowd (exit strategy). Work in pairs or in a group so that you can watch each other’s backs (it is easy to get tunnel vision when your eye is up to the viewfinder). This also will help should you be injured or arrested and are unable to notify anyone of your situation. Remember to keep recording. The narrative from this most recent situation could have easily turned into a he-said/she-said story had it not been for the video.

Involving the authorities may not achieve the results you are looking for, as far too often police do not know or understand these constitutional and privacy rights and may actually take the side of the wrong party or escalate the situation [to where] the journalist is the one being threatened with [arrest].

Deciding what to do in these situations is a very personal decision. Having an understanding of your rights and responsibilities is the first step in deciding how to act. Having confidence and the courage of your convictions should come from having considered what to do BEFORE you find yourself in the middle of a similar situation.

Hermes: What is your take on what happened to student Tim Tai, a member of the National Press Photographers Association (NPPA), when he tried to photograph protesters at the University of Missouri?

Osterreicher: After reviewing the video of the unfortunate incident, NPPA commends the calm and professional manner with which student journalist and NPPA member Tim Tai dealt with the confrontation. We also appreciate the job that the University of Missouri Journalism faculty did in training Tai, as well as Mark Schierbecker, another student who captured video of the incident. They both exemplified the highest standards of the NPPA Code of Ethics, which is “intended to promote the highest quality in all forms of visual journalism and to strengthen public confidence in the profession. It is also meant to serve as an educational tool both for those who practice and for those who appreciate photojournalism.”

Both Tai and Schierbecker were attempting to live up to that Code by treating their “subjects with respect and dignity” and by giving “special consideration to vulnerable subjects and compassion to victims of crime or tragedy.” Although this incident occurred in a public place, they were mindful to balance intrusion onto what were claimed to be “private moments” because of the overriding and justifiable need to for the public to see these events. By doing so, Tai and Schierbecker helped defend the rights of access for all journalists. While striving to be unobtrusive and humble in dealing with the protesters they were  exemplars of the spirit and high standards expressed in the NPPA Code of Ethics.

Hermes: What is the NPPA, and what does it stand for?

Mickey Osterreicher, quoting from NPPA literature: The NPPA is a “professional society that promotes the highest standards in visual journalism, acknowledges concern for every person's need both to be fully informed about public events and to be recognized as part of the world in which we live…. Visual journalists operate as trustees of the public. Our primary role is to report visually on the significant events and varied viewpoints in our common world. Our primary goal is the faithful and comprehensive depiction of the subject at hand. As visual journalists, we have the responsibility to document society and to preserve its history through images…. Photographic and video images can reveal great truths, expose wrongdoing and neglect, inspire hope and understanding, and connect people around the globe through the language of visual understanding. Photographs can also cause great harm if they are callously intrusive or are manipulated….”

Hermes: In a tense situation with a crowd or with the authorities, do you have any recommendations on how to convey your First Amendment rights quickly and succinctly?

Osterreicher: Be mindful to do your best not to engage your subjects in an argument or lose your temper. Do not become physical unless absolutely necessary to defend yourself. It is better to strategically retreat to a different location than become part of the story. Capturing an image is not worth being injured or ruining your credibility and reputation. If you feel it necessary to answer those around you make your statements short and succinct. Saying  something like, “I understand your position, but I have a job to do and have as much right to be here as you do,” should be appropriate. The video of [student journalist and NPPA member Tim Tai’s] response serves as an excellent example of what to do for all journalists who may encounter these situations.   

Finally, if it is still not clear to you as to what a proper course of action should be, take the advice found in the NPPA Code of Ethics: “seek the counsel of those who exhibit the highest standards of the profession. Visual journalists should continuously study their craft and the ethics that guide it.”

Hermes: Some of the activists at the University of Missouri were raising objections based on privacy, requesting that the photographer leave them alone. Are there any legal grounds to that kind of request? What are the ethical grounds to be considered?

Osterreicher: The protesters were exercising their First Amendment right to free speech and to peaceably assemble for a redress of their grievances against the school’s president. Tai was also carrying out his free speech and free press rights as a citizen and journalist.

Aside from these constitutional rights … is the right to privacy. It should be understood that people do not have a reasonable expectation of privacy in a public place. If someone wants a “safe space” or privacy, they need to consider that before going to a demonstration in a public place. We are all photographed and recorded dozens (if not more) of times every day when we are out in public. Once again that is because there is no reasonable expectation of privacy in a public place. It is also why citizens and journalists may photograph and record police officers performing their official duties while in a public place and why law enforcement may record citizens with bodycams. Tim Tai did not need permission to take anyone’s photograph. It is one thing to politely request someone not to take a photograph, and quite another to try to intimidate that person from doing so.