First Amendment experts question the constitutionality and wisdom of proposed rule changes that would ban unauthorized photography and videorecording on subways and trains owned and operated by the New York City Transit Authority and other area subways. Transit officials counter that the ban protects public and passenger safety.
The Metropolitan Transportation Authority of the State of New York first released several rule changes, including two regarding mass-transit photography, in May 2004. The proposed rules, which were published in the Nov. 24, 2004, issue of the NYS Register, read:
“In order to enhance passenger security and safety, photography and videorecording is prohibited except for members of the press holding valid identification cards issued by the New York City Police Department or where written authorization has been provided by SIRTOA.”
(SIRTOA is the Staten Island Rapid Transit Operating Authority; its permission to take pictures would be needed by those riding public transit on the island.)
The proposed ban would apply to property owned by NYCTA, the Manhattan and Bronx Surface Transit Operating Authority and the SIRTOA. (NYCTA describes itself as the largest agency in the MTA regional transportation network.) Those who violated the rules could be subject to criminal prosecution and a fine.
The rule changes met with swift resistance in certain quarters. Soon after the proposal was announced, a group of what the New York Daily News called “camera-happy protesters” hopped from train to train shooting photographs. Other artistic advocacy groups referred to it as a “flashmob” protest.
Mayor Michael Bloomberg questioned the wisdom of the policy, particularly if it was to be enforced against tourists.
The proposal was held in abeyance until transit officials reintroduced the rule in late November 2004 and then called for a 45-day public comment period.
The proposal received many unfavorable comments that questioned the plan on different levels. Some focused on constitutional problems with the ban. Others voiced cultural objections. Still others argued that the ban would not serve the fundamental safety interests it purports to protect.
The National Press Photographers Association, Radio-Television News Directors Association, Reporters Committee for Freedom of the Press, Society of Professional Journalists and New York Press Photographers Association jointly filed comments with the MTA, claiming that the proposed ban would infringe on fundamental First Amendment freedoms.
“The proposed rule violates the First Amendment rights of photojournalists and other photographers,” the groups wrote. “Photojournalism is key to facilitating the press’s effective reporting of newsworthy events. … Simply put, pictures help all people better understand any subject in the public domain.”
“The MTA’s proposed photography ban will significantly hinder the press’s ability to report on newsworthy events that occur on NYCTA,” the groups concluded in their comments. “And when reviewed against the requirements of the First Amendment, the ban itself is unconstitutional. The proposed photography ban should be rejected, and photography should continue to be permitted in the New York City public transportation system.”
The ban idea drew the ire of activists, as well. Robert Lederman, president of A.R.T.I.S.T. (Artists’ Response To Illegal State Activity) blasted the proposal: “The subway ban not only infringes on the rights of photojournalists but also tourists, members of the public, street artists. It affects everyone.”
The Lower Manhattan Cultural Council questioned the ban from a cultural perspective: “Beyond the pleasure and freedom of tourists, it is vital that we protect the right and ability of artists to record the mass transit experience, a fundamental element of urban New York City life.”
Bert P. Krages II, an Oregon-based attorney who writes about photographers’ legal rights, also filed comments against the ban. “I think it is unconstitutional because it is a public space and the public has an interest in being able to express whatever it is they want to express about the subway system,” he said in an interview. “Two dangers immediately come to mind: (1) a loss of preservation of history a lot of history is documented through photographs even by amateurs and the other is (2) protecting societal interests the taking of photos of arrests, such as the videotaping of Rodney King.”
In his written comments, Krages focused on how the photography ban would harm, not help, safety interests: “Fostering an environment where a prospective terrorist is more likely to be photographed would do much more for enhancing public safety than would promulgating a rule that would prohibit passengers from using cameras to document activities that cause them concern.”
Krages pointed out several examples where citizens foiled criminal attempts through the use of cell-phone cameras. “The NYCTA would do far more to combat crime and deter terrorism by encouraging passengers to send images of suspicious conduct such as people abandoning containers within the transit system.”
The Reporters Committee was equally skeptical. “It is an inappropriate reaction,” said Gregg Leslie, the group’s legal defense director. “Anytime you make a blanket restriction on something because of a slight chance it could be used for harm, usually that is an inappropriate response. I haven’t heard the case of how stopping tourists from taking pictures will do anything to stop terrorism.”
The comment period ended Jan. 10. Paul Fleuranges, vice president for corporate communications at the NYCTA, said the comments were being collated and reviewed by the NYCTA law department. After studying the comments, the transit authority will issue a recommendation to the MTA’s executive board.
Fleuranges said he didn’t expect the MTA board to vote on the rules and regulations, including the photo ban, “until at least March.”
He strongly denied the proposed ban was an example of Big Brother censorship. “This is not some type of Mission Impossible paranoia,” he said. “The reason this all came about was because we received alerts from federal law enforcement officials and the Department of Homeland Security about being on the lookout for terrorists doing harm and that these terrorists often case locations that they plan to attack.”
“We know we are a target,” Fleuranges said. “The New York city subway system has been a target since the Cold War.” He pointed out that a photography ban had been in place since before World War II until 1994.
He confirmed that the proposal arose in part from safety concerns expressed by the New York Police Department.
Sign of the times
Some opponents say the ban represents only the latest in a long line of assaults on photographers. Krages said a similar, less formal (unwritten) ban had been imposed in New Jersey.
Said Lederman of A.R.T.I.S.T., “The New York subway photo ban is but one small part of a larger, city wide attack on free expression in public places.
“The (former Mayor Rudolph) Giuliani and Bloomberg administrations both have waged war on free expression on public sidewalks and other places. I have personally been questioned and arrested by New York City police for trying to photograph policemen harassing street artists.”
Krages, who devotes some of his practice to representing photographers, said he had encountered numerous people who had had confrontations or had been arrested for “taking photos of police arrests, industrial plants.”
“I talked to one individual who had been detained for 20 minutes for taking a photo of a handrail on a federal building,” he said.
“It has gotten worse since 9/11,” Krages said. “But photographers were being harassed before 9/11.”