Law for photojournalists in the US

Photojournalists work at the edge of the law more often than most journalists. They go to places where police are active, photograph people who do not want to be photographed, cover courts and protests, protect confidential sources and publish images that can harm reputations. This lesson outlines the US law that matters most for news photography: the First Amendment, access and police interaction, the right to record police, protection of sources and newsrooms, courts, privacy, publicity rights, defamation and copyright. PHOT-230 covered the basics of photographing in public.

The First Amendment

The First Amendment to the US Constitution prohibits the government from abridging freedom of speech or of the press. Courts have recognized that gathering information, including photographing and recording in public places, is protected expression, though the protection is not unlimited. Governments may impose reasonable time, place and manner restrictions that are content-neutral, narrowly tailored and leave open other channels. The First Amendment restrains governments, including police, not private property owners or individuals. In general, the press has the same rights as the public, not special privileges.

Access to scenes, events and public places

In the United States, anyone may generally photograph what can be seen from a public place, and journalists usually have no greater right of access than the public. Police may set perimeters and give lawful dispersal orders, and failing to obey can lead to arrest for offenses such as obstruction, failure to disperse or disorderly conduct under state law. Many police departments have policies recognizing journalists' role at protests, and some states have passed laws exempting journalists from dispersal orders in certain situations, for example California's 2021 law allowing credentialed journalists to remain in closed areas at protests. Courts have issued injunctions protecting journalists from police force at protests after past abuses.

US journalists are arrested and detained at protests every year. The US Press Freedom Tracker, run by the Freedom of the Press Foundation, has documented hundreds of arrests and assaults on journalists, with peaks during the 2020 protests after the killing of George Floyd and in later protests over immigration enforcement. Most charges against journalists are later dropped, but arrests still interrupt coverage, can lead to seized equipment and can deter reporting. Professional groups such as the NPPA, the Reporters Committee for Freedom of the Press and the Society of Professional Journalists provide guidance and legal support.

The right to record police

Most federal appeals courts that have considered the question, including the First Circuit in Glik v. Cunniffe in 2011 and the Third Circuit in Fields v. City of Philadelphia in 2017, have held that the First Amendment protects recording police officers performing their duties in public, subject to reasonable restrictions. Laws that tried to limit recording, such as Arizona's 2022 law banning recording within eight feet of police activity, have been blocked by courts. Officers generally cannot order you to delete images or seize your camera without a warrant or a recognized exception. If equipment is seized, do not resist physically; record names and badge numbers and contact your editor and lawyer.

Protecting sources and journalistic material

There is no federal shield law in the United States. In Branzburg v. Hayes in 1972 the Supreme Court held that the First Amendment does not give journalists a general privilege to refuse to testify before a grand jury, although some lower courts recognize a qualified privilege. Most states protect journalists through shield laws or court decisions; Wyoming is usually cited as the only state with neither. The PRESS Act, a proposed federal shield law that would protect journalists' sources and records, passed the House unanimously in January 2024 but stalled in the Senate at the end of that Congress; check its current status. The federal Privacy Protection Act of 1980 limits searches of newsrooms and seizures of journalists' work product and documentary materials, generally requiring a subpoena rather than a search warrant.

The protection is not absolute. Federal prosecutors have subpoenaed journalists' records and testimony in leak investigations, and the Department of Justice's guidelines on obtaining information from the news media have changed several times; check the current version. Unpublished photographs and video of protests and crimes are sometimes sought by subpoena. The safest practice is to consider what you hold, protect it securely, and consult your organization's lawyer immediately if you receive a subpoena or a request from police.

Courts and cameras

US courts vary widely in allowing cameras. Federal criminal courts prohibit photography and broadcasting under Rule 53 of the Federal Rules of Criminal Procedure, and the Supreme Court does not allow cameras. All states permit cameras in at least some state court proceedings, but the rules differ and judges usually have discretion. Prior restraints, court orders forbidding publication, are presumptively unconstitutional under Nebraska Press Association v. Stuart in 1976, and the Supreme Court has held that the press cannot be punished for publishing truthful information lawfully obtained from public records, such as a rape victim's name in Cox Broadcasting v. Cohn in 1975 or a juvenile's name in Smith v. Daily Mail in 1979. Restraint on identifying victims and juveniles is therefore usually a matter of newsroom ethics policy rather than law.

Privacy

US privacy law for photographers rests mainly on four torts recognized in most states: intrusion upon seclusion, public disclosure of private facts, false light and appropriation of name or likeness. Newsworthiness is a strong defense to disclosure claims, and photographing people in public places is generally lawful. Intrusion claims can arise from photographing into private places, such as homes, using long lenses or drones. California's Civil Code section 1708.8, sometimes called the anti-paparazzi law, creates liability for physical or constructive invasion of privacy to capture images of people in personal or family activities. False light claims can arise from misleading captions or juxtapositions. State laws on voyeurism and drones also apply.

Publicity rights

The right of publicity protects people against commercial use of their name or likeness without consent. It is a matter of state law, by statute in some states, such as New York's Civil Rights Law sections 50 and 51 and California's Civil Code section 3344, and by common law in others. Newsworthiness and editorial use are generally protected, so publishing an identifiable person in a news photograph does not violate publicity rights, but using the same photograph in an advertisement can. This is why editorial images are licensed for editorial use only, as Lesson 2 explained.

Defamation

A photograph combined with a caption or headline can defame someone by implying false facts, for example that a bystander was a suspect. US defamation law strongly protects the press. In New York Times v. Sullivan in 1964, the Supreme Court held that public officials must prove actual malice, that the publisher knew a statement was false or recklessly disregarded whether it was, and later cases extended this to public figures. Private individuals must usually prove at least negligence. Truth is a complete defense, and opinion based on disclosed facts is protected. Many states have anti-SLAPP laws allowing early dismissal of suits targeting speech on public issues. Careful captions and attribution are still the best protection.

Copyright

Under the US Copyright Act, the photographer owns the copyright unless the photograph is a work made for hire, which includes work by employees within the scope of their jobs and certain commissioned works under a signed agreement. Freelancers therefore usually own their news photographs and license them. Registration with the Copyright Office is needed before suing for infringement in most cases, and timely registration allows statutory damages and legal fees, so many photojournalists register regularly. Fair use, decided case by case on four factors, may allow some news use, but taking a photographer's or witness's image without permission is a common source of lawsuits. PHOT-302 covered licensing in detail.

Borders and devices

US Customs and Border Protection officers can search electronic devices at the border, including those of journalists. CBP policy distinguishes basic searches from advanced forensic searches, which require reasonable suspicion, and federal appeals courts have disagreed about what the Constitution requires. Journalists have reported being questioned about their work and having devices searched. Minimize sensitive material on devices, use encryption, and consult resources from press freedom groups before traveling. Traveling to Canada, Canadian rules also apply.

Practical legal habits

Keep the phone number of your organization's lawyer, or a press freedom hotline, saved and easy to reach. Write down the facts of any police encounter as soon as possible afterwards, including times, names and badge numbers. Store sensitive material securely and think about what you carry into protests and across borders. When in doubt about publication, ask before you publish, not after.