[Tweeters] Legal vs Ethical
Timothy R Barksdale
timothy.barksdale at gmail.com
Thu Jan 28 15:12:59 PST 2016
I assume part of the motivation of posting of these is in relation to the relatively recent demise of the Northern Hawk Owl.
As a professional film-maker/Journalist / artist / author I have been in touch with Mr. Krages personally. He may be the single most knowledgeable photographers rights attorney in the US. I've never had to do much more than assert my rights or show previous accreditation as a member of the media and the press, but clarifying exactly what they are, while I am carrying a camera within the United States- is. Being in a foreign country is NOT the same as being in the USA and I would suggest that anything I say below- may not apply in any foreign country - including Canada.
While you are in the USA or any states, territories, etc- Photographers have very broad rights to photograph nearly anything if the photographer is in a clearly public place and after numerous court rulings, that includes nearly anything, but invasion of privacy and even more special cases like military bases or secret fighter jets you are going to lose.
I have had my share of run-ins with morons over my 25 years of filming, and have been harassed by unexpected sources in situations where a simple request politely put, would have done so much more than screaming and trying to surround me- while standing near the shoulder of a public highway... Even occurring in Washington State on the Sammish Flats. I could have sued and filed harassment charges, in that incident, but that is just not my style.
Recently there have been so many incidents of people confronting the press in public places, from the University of Missouri Quadrangle to the armed occupation of Malhuer National Wildlife Refuge. Threatening, intimidating or preventing access to a member of the press to public places is clearly illegal and just plain wrong. Whether Law enforcement officers must provide access under all circumstances to crime scenes or areas or restrictions is difficult to always assess. There may be some justification where an officer may advise a journalist that hazards or other danger lies beyond and into a restricted area. In most of these situations, the general public may be denied access but a journalist may not. But if a journalist, had a specific appointment -say with the nut-cases in the refuge, I suspect the F.B.I. may not like it- but they would probably be required to allow a legitimate journalist pass into blockaded areas. A court order to allow access would most certainly be the final result, if the journalists could show their safety was not in jeopardy and in some cases -even if it were.
The fine line is always: what does cross into privacy.
So in the situation, had I been standing on a given public road and filmed a Bird of any species, on private land, and come back later to find that bird in the act of being shot or already killed, I have that right as an American citizen and even more so as a journalist because of specific protections given to the press. In most cases, where you are in any public situation- anyone does. You can be asked to leave certain areas of questionable " public " ownership, say a Mall, but only if you are in violation of laws or are involved in harassing someone who has an equal right to expect a certain amount of privacy. In special venues which are owned by corporations, you may be asked to abide by certain guidelines or "rules". But you are still subject to your constitutional rights.
If that road is private, anyone can be charged with trespassing.
So Students camping in tents on the University of Missouri Quadrangle are clearly in a public area. They may not restrict journalists of other members of the public from passing freely on public ground. Do they have a reasonable right to expect to NOT have a journalist or other member of the public barge into a private tent on that public ground- I would say yes.
But one is not barging into a private home on private property if a dead bird is clearly viewed from public places. However, if photos were taken with a long lens of a person inside of that building who can reasonably expect privacy, then again you are not going to be able to use the film.
But privately proving someone did something is not in most of our interests. Providing material evidence which can aid in criminal prosecution I would suggest is in everyone's interest, as long as it was legally obtained. So any violation of wildlife codes, can be taken to the appropriate governmental agencies. There are well trained people to handle these cases with in appropriate divisions of government.
Private property rights are clear and extensive, but preventing photography from a public place is not one of them.
Hopefully, this discussion is helpful.
P.O. Box 1124
65 Mountain View Dr.
Choteau, MT 59422
timothy -dot- barksdale -at- gmail- dot- com
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