Mickey Osterreicher, lawyer for the National Press Photographers Association, discusses how regulations on drone photography can limit freedom of the press.
In this episode of The First Five, Gene Policinski speaks with Mickey Osterreicher, general counsel for the National Press Photographers Association, about “drone journalism.” As the technology becomes more widespread, legislators around the country are grappling with how to regulate the use of drones, particularly by journalists, in a way that doesn’t impinge on First Amendment rights.
Gene Policinski is president and chief operating officer of the Newseum Institute.
Mickey Osterreicher is general counsel for the National Press Photographers Association. He is experienced in contract, media, copyright and First Amendment Law, and has been actively involved in matters such as cameras in the courtroom, the federal shield law, media access, public photography, orphan works and copyright infringement. Mickey is also an award-winning photojournalist with almost 40 years of experience.
Gene: I’m joined today by Mickey the chief counsel for the National Professional Photographers Association and a frequent guest on this program, and we’re delighted that that’s the case. Today we’ll talk a little bit about Drone Technology, which Mickey has been involved in negotiating with the Government. And then we’ll talk about something that I think is a more of an immediate issue for those of us who have cell phone and use them to record policed doing their jobs or even the professionals who do that. Let’s catch up on Drones right now. How are we doing in trying to negotiate federal regulation surrounding that?
Mickey: Thanks for having me. It’s literally like watching a stock ticker these days – when it comes to drones. Lots going on. There was a challenge to some local regulations in MA where basically the federal trial court said, “No the FAA has federal preemption on this” the down of Newton waited until the very last day and filed an appeal. People thought it was settled there but now we’re going to see what happens with the appeal.
Gene: one of the great threats is this patchwork of regulations across the country.
Mickey: and just to address that, the FAA started another UAS program, the AUVSI which is the world’s largest association of unmanned vehicles. They wrote a letter to President Trump on October 11th, again, saying that they believed that the federal government had federal preemption but recognizing the fact that state and local municipalities have been enacting legislation that affected the use of drones. So, there’s this pilot program that literally got put into place that got put into place a week later; you know we’re going to see; you know, there’s talk of local governments regulating or having the ability to regulate from 0-200ft and the feds from 200-400ft and so on. I mean, I don’t see how that’s necessarily going to work but, you know, we very much, and when I say we I mean NPPA and other news outlets, want to have a voice at the table once again to ensure that we can use drones for newscasts
Gene: absolutely and of course I can see, I guess, the logic “lower, slower, closer to somebody’s window” municipalities may feel public pressure to be more regulatory than the higher up larger scans or news events where you’re covering a forest fire or something.
Mickey: I think in most cases legislators are reacting to their constituents’ concerns, once again it is like the sky is falling they’re
Gene: particularly appropriate in this discussion (laughter)
Mickey: exactly. But we continue to want to be good stake holders. We saw the absolute value in the use of drones for news casts during both hurricanes. And we must give the FAA credit for granting waivers during that time. Normally the licensing process was 3-months! We did four drone journalism workshops around the country this year. We did it at the University of GA at Athens, we did it at Syracuse, we did it at the University in Madison, and then we did it again in Portland. We had 400 or so journalists go through, we’ve had 100 so far, take and pass the Part-107 Exam – your license to operate drones commercially. Then I convened a summit meeting in September as kind of a culmination of those events where we had the heads of pretty much every major news organization in the country attend along with the FAA and law enforcement. Because, when somebody is operating a drone, the first person they’re going to come in contact with is not an inspector from the FAA it’s going to be a local cop – who probably has no idea about drones or laws pertaining to them or any of that, so we think it’s very important for news organizations and law enforcement to work together, which is part of what our proposal is under this new pilot program and NPPA is hoping to work with local law enforcement agencies in developing some model guidelines
Gene: Go out to the police chiefs and sheriffs’ organizations for example…
Mickey: Yes. I just spoke to the airborne law enforcement association, I think it was them, they all blur together (laughs) – it was in September. But going back to the waivers, we had somebody who is the head of the UAS program for USA Today and he was actually – during the summit meeting, on the phone, during Hurricane Irma – and they were granting waivers within 20 minutes.
Mickey: If you can tailor your request down to a certain altitude, a certain GPS location, they’re more likely to grant it – they might say something like, “You asked for 150ft… can you do it at 100ft?” if you say yes, they’ll say, “Okay, go ahead.”
Gene: I think local law enforcement’s default response is going to be “don’t, it’s new, don’t do it until we know more.” Which is a great segue into this idea of being able to photograph and record events that are occurring in front of you on the ground… you were just involved in some action in the second circuit
Mickey: Yes, a citizen in New Zealand had been covering Occupy Wall street in New York who had climbed up on a telephone booth to get a clear shot of crowd. The first time he went up, the police didn’t say anything. He came down, then he went back up again when things started to heat up. Police asked him to come down, he didn’t respond quickly enough, and they basically – as he was coming down – pulled him down and charged him with disorderly conduct. I’ve had the charges dismiss (this was quite a number of years ago). He brought a federal civil rights lawsuit against the city, under the first amendment, and the judge in that case at the motion to dismiss by the city basically articulated, what I think is a good rule: “A journal who is otherwise uninvolved in the event that he/she is covering, that right to record is clearly established.” The reason we need that phrase “clearly established” is because when police seek qualified immunity, which they always do when they sue, the termination is: Is there a constitutional right and is that right “clearly established” so that any reasonable police officer would know that by denying somebody that ability they were basically violating their constitutional rights.
Gene: this distinction also, that when they’re clearly not involved in the activity they’re documenting, because we’re seeing cases right now, there’s a case in the courts in D.C. over a person who was capturing images and reporting during the inaugural events. He was caught up in a police sweep and has been charged with some pretty serious charges in terms of violence. Now, as I understand it, that person belongs to and advocacy group, which is not disqualifying, but the question there… some of it is going to really rest on “were they participating in the demonstrations or were they simply performing a journalistic function.”
Mickey: yes exactly. We had a man who was caught up in that kettle as well! When I spent time talking to the US Attorney… normally they can’t’ look at those photos without a warrant but we knew that wouldn’t be a problem so we let them look at the images… they decided that he clearly was a journalist and dismissed the charges.
Gene: sorry but I think that was important for people listening to this to understand that you don’t just get to say, “I’m a journalist” and there’s immunity or first amendment protection…
Mickey: Right. And it’s not that the press has any more right than the public (of access) but they certainly don’t have any less right and they are commonly kept further away than the public. So, at any rate, in this case, when it went to the Summary Judgement stage, which basically says that “even based on all of the facts, we’ll stipulate to all the facts, that as a matter law, one side or the other wins, and in this case the judge found that the arguable probable cause to arrest this photographer for something. You know, that became… becomes a real problem… so we repealed that and the argument was in October before the second circuit at the very start of the argument the second circuit, one of the three judges in the panel, referenced the fact that the Supreme Court had just granted to hear a case in the next term which deals with the very issue of this case: “Does probable cause trump somebody’s first amendment rights?”
Gene: so just to, look at that argument that’s going to take place next term: that would invalidate the sweep in some ways, right? There’s violence going on, there’s a large crowd, as a police officer you’d have probable cause to arrest on a fairly broad basis… would this prevent them from doing this?
Mickey: I don’t think it would prevent them, but I think it would make it a little more difficult, which, you know, when it comes to somebody’s constitutional rights based on the government’s power, making things a little more difficult like requiring them to read a Miranda Right
Gene: … right, this isn’t a burden, this is due process
Mickey: Exactly. And it’s so funny that you say that because in all these cases it’s not just the First Amendment issue, it works with the Fourth Amendment against unreasonable search and seizure of both the person in terms of their arrest and their camera equipment… and then due process as well! Did they have due process?
Gene: I’ve really struggled as I’ve watched the growth of our journalism profession beyond the old brick and mortar days and you worked for somebody and you got an ID card from your news outlet to today’s more democratic situation where everyone has a cell phone and we can all preform the function of journalism and …. you wrestle with this when someone is backing into the definition of a journalist because it’s a convenient defense.
Mickey: the biggest question nowadays is “Who is a journalist?” We had this problem when trying to create a federal shield law. The question was “Who is defined by that class?” If it’s EVERYONE, then the law is going to be that qualified privilege is so overwhelmingly broad and vague that the law will be struck down. You can’t just say “do you earn you living by doing journalism?” I was just asked a question in St. Louis about a protest where the police arrested everyone involved, one of our members was involved, he was clearly identified as a journalist, they were wearing credentials, and it didn’t matter. So, having credentials sometimes is a detriment… but, you know, there are a lot of people who are bloggers who have a larger readership and following than some newspapers!
Mickey: Trying to figure that out is probably one of the bigger questions these days.
Gene: I thought we had moved to a functional definition in maybe a preliminary hearing, to see if you were preforming the function of a journalist or and advocate.
Mickey: That goes to the right to freedom of expression. But if that expression constitutes material interference, that’s one thing, but for you to make a comment that doesn’t necessarily mean you’re not entitled to those same privileges. I can remember Walter Cronkite, when Dan Rather was getting arrested on the floor at the Democratic National Convention, calling the police thugs! So, under that kind of definition Walter might have been subject to some kind of arrest!
Gene: We spent a long time developing what I always called the “Clark Kent” idea, you know “I’m from the Daily Planet” … you had this identifiable brick and mortar affiliation, or a publication… today that’s really totally dysfunctional definition.
Mickey: and it used to be pretty obvious who were the photo journalist [because of all the equipment hanging off your body] nowadays somebody can perform journalism with an iPhone! They can be livestreaming, they can be getting HD video stills, audio….
Gene: Now 360!
Mickey: And now drones!
Mickey: Again, that whole idea of the First Amendment being subject to “reasonable time, place, and manner” restrictions. There was a case in Connecticut, basically it was the same argument, “is the right to record clearly established?” We’re still trying to deal with it on the ground! Now we’re into the national airspace! We’re all pioneers in this; we’re going to be on that leading edge of setting precedence of having case law, but first we have to establish it on the ground. Baby steps.
Gene: build up a foundation. I think many people would be surprised that it wasn’t until the 1980s that we established the right for the press to be in a courtroom! Courts were public, but in the form of a transcript. People don’t understand how long it took to establish the right to sit in a courtroom during a trial and only be thrown out for very specific reasons.
Mickey: and we still don’t have the right to have cameras in the courtroom!
Gene: yes, there is that!
Mickey: clearly a very important case: Masterpiece Cake, and the line just to the Bar went around the corner! I was going to sit in the lawyers’ lounge but I opted not to because to listen to it without seeing it is not the same…. The interest there is, once again, it makes no sense that in 2017 we can’t have cameras in the courtroom. You know, clearly there was a huge interest in seeing it – between the public that was outside…. I saw them out there on Sunday!
Gene: Actually, people were there on Friday for this argument! And I’m talking on Tuesday there were camping out the Friday before! And near the bar entrance, I was told you had to be there at 530 in the morning!
Mickey: Yeah, I would say I got there at 730am and when they finally said they had run out of room, that they were going to try to make extra space, I figured I’d wait it out, but at that point there were probably a good 20-30 people ahead of me who were also going to be in the lawyers’ lounge and not be admitted.
Gene: you know, it’s interesting, the argument from the Supreme Court Justices, those who were in favor of it, prior to joining the court, joined the “No cameras over my dead body” David Suiter phrase… I can’t even imagine the litigants or even the justices acting a whit’s difference in this kind of case.
Mickey: Especially the technology… you won’t even see the cameras or know the cameras are there. As somebody who is up there and address thing court… one would help that the judges again, just like they’re oblivious to the microphones in front of them ….
Gene: Right! 50 years ago, this might have been obtrusive technology, but today they’re nothing.
Mickey: Right. The first time the Supreme Court addressed the issue of cameras in the courtrooms in Estes v Texas, the cameras were big news cameras!
Gene: with hugs lights…
Mickey: Exactly! With cables and lights, it changed the complexion of the courtroom
Gene: I still think people imagine the Stokes trial when they think of cameras in they think about cameras in the courtroom. Like, it became a movie set almost…
Mickey: Yeah, where you had photographers running around the courtroom. You don’t have that these days. There are rules and regulations for when you are allowed in to the courts
Gene: and they are reasonable time, place, and manner restrictions in many cases.
Gene: Well, we’ve been talking to Mickey Osterreicher, who is the general counsel for the National Press Photographers Association and first amendment lawyer extraordinaire… thanks for joining us. We’ll have this discussion again I’m sure.
Mickey: Thanks so much for having me. I really appreciate it.