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New, misplaced sensitivity about privacy evolving in society

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There are few places where one has less of a reasonable expectation of privacy than on a public sidewalk outside of a public building or as a participant in a public demonstration concerning the speaking appearance of a high profile former public official at a major university. Yet, two recent statements from two unlikely sources – the Arizona Supreme Court and the editors of the student newspaper at Northwestern University – have supported, at least briefly, the notion that people have a right not to be photographed on public sidewalks and when participating in public demonstrations. While some people may not like to be photographed in such places, they do not have a right of privacy to prevent their photo from being taken.

Dan Barr

Dan Barr

On Oct. 16, the Arizona Supreme Court issued an administrative order to address a recent problem caused by self-styled “patriot” groups who are entering courthouses around Arizona and using their smart phones to take photos of people inside the courthouse and disrupting activities there.  Apparently, this practice began in protest of people using smart phones to record the actions of police in their communities. While Supreme Court Rule 122 already prohibited photography inside courtrooms without judicial approval – and in all other areas of the courthouse without the expressed consent of the person being photographed – it was felt the new administrative order was needed to protect those appearing in appellate courts and facilities used by the Foster Care Review Board.

The problem with the new order, however, was that it also prohibited photography on sidewalks outside the courthouse, unless the person using the camera had obtained the advanced written consent of the court. Sidewalks outside of courthouses are often where news reporters interview and photograph lawyers, litigants and people otherwise interested in a court case. As a matter of constitutional law, sidewalks are a traditional public forum, where speech can only be regulated by reasonable time, place and manner restrictions, such as prohibiting megaphones during certain hours of the day or making sure the sidewalks remain passable for pedestrians. In a public forum, the government can regulate the conduct of the speaker, but not the content of the speech.

To the Supreme Court’s great credit, on Nov. 6 it issued a new administrative order that removed the prohibition of photography outside the courthouse and replaced it with a prohibition of “any activity that threatens any person, disrupts court operations, or compromises court security at entrances and exits and on patios, steps and adjacent parking areas dedicated to court use.” Photography inside the courthouse remains prohibited. The new administrative order is now consistent with federal regulations governing conduct in the plaza outside of the United States Supreme Court, which are designed to prohibit disruptions, maintain decorum and allow for unimpeded access on court property. The U.S. Supreme Court regulations, however, do not prohibit media interviews or the use of cameras in the plaza, nor do they touch upon any activity on the sidewalks outside of the plaza area.

The situation at Northwestern University arises from a Nov. 5 speech on campus by former U.S. Attorney General Jeff Sessions. About 150 protesters gathered outside the lecture hall before Sessions’ speech, holding signs and booing and yelling as attendees entered the building. Naturally, the campus newspaper, The Daily Northwestern, covered the speech and the protest. Nothing unusual about that.

What was unusual, however, was the backlash from some of the student protesters for being photographed at the protest and having those photos published in the student paper and its website. Think about that for a second. Isn’t the whole point of participating in a demonstration in a public place to publicly declare your opposition to whatever you are protesting? I get that in totalitarian countries and places like Hong Kong protesters wear masks to prevent themselves from being identified by police, but this is a college campus in the United States. If you don’t want to be identified as one of the people at a public protest, don’t go to the protest.

But then it got weirder.

On Nov. 10, the editors of The Daily Northwestern published an apology for publishing photos of the protest – an apology for doing their jobs as journalists. Here’s part of what they had to say:

“One area of our reporting that harmed many students was our photo coverage of the event. Some protesters found photos posted to reporters’ Twitter accounts retraumatizing and invasive. Those photos have since been taken down. On one hand, as the paper of record for Northwestern, we want to ensure students, administrators and alumni understand the gravity of the events that took place Tuesday night. However, we decided to prioritize the trust and safety of students who were photographed. We feel that covering traumatic events requires a different response than many other stories. While our goal is to document history and spread information, nothing is more important than ensuring that our fellow students feel safe – and in situations like this, that they are benefitting from our coverage rather than being actively harmed by it. We failed to do that last week, and we could not be more sorry.”

Can you imagine such drivel being published by a student paper that covered the civil rights and Vietnam War campus protests of the 1960s and ’70s? You know, when truly traumatic events at places like Kent State and Jackson State were occurring?

Clearly a new sensitivity about privacy is evolving in our society, in part due to the enormous amount of online data about each one of us that is shared freely and sold commercially. However, there are few public places, especially in urban areas, that are not covered by closed circuit surveillance cameras. Advances in facial recognition software have made it increasingly easy for law enforcement to locate individuals in a crowd. Like it or not, people do not have a right to privacy that protects them from being photographed in public areas, especially when they are doing something newsworthy.

Dan Barr is an attorney with Perkins Coie, LLP and represents news media companies and the First Amendment Coalition of Arizona.

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