Part One: First Amendment Rights and Guarantees
At the time of the American Revolution, a number of the legislatures in the first states called for freedom of the press as a check on government despotism. These calls had little legal standing, often being seen as an admonition to state leaders rather than true statutes. As the framers developed the federal Constitution, Anti-Federalists had grave concerns about the lack of protections for civil liberties in the document. In the years immediately after the ratification of the Constitution, the Bill of Rights was written and became Amendments One through Ten of the U. S. Constitution.
The freedoms that citizens, residents and visitors to the United States have to gather information, report and publish that information for an audience come from the First Amendment. It reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The freedom of speech and of the press stated in the amendment have been interpreted by the courts in the more than two centuries since the ratification of the amendment. Specific freedoms (and limitations) will be addressed throughout this guide, with the latest case law included, as well as links to more information.
Filmmaking as free speech; Filmmakers as journalists
While the First Amendment rights of freedom of speech are guaranteed to all in the United States—not just to those who identify as journalists—the courts have not always supported the work of filmmakers as protected under the First Amendment. As motion pictures became a commercial success in the early part of the 20th Century, the U.S. Supreme Court ruled in 1915 in the Mutual Film Corporation v. Industrial Commission of Ohio case that cinema is a purely commercial business and was therefore not protected under the free speech provisions of the Ohio Constitution (which guaranteed freedoms similar to the First Amendment). That ruling allowed the heavy censorship of films and led to the infamous Motion Picture Production Code—or Hayes Code—that exerted strong control over motion picture content.
The Mutual decision was overturned by the Supreme Court in 1952 in the Joseph Burstyn, Inc. v. Wilson case, often better known as the “Miracle Decision,” due to the title of the film in question. The court ruled that motion pictures are aesthetic expressions due protection under the First Amendment, overturning a New York law.
A more complicated picture develops when considering the guaranteed freedom of the press. Just who qualifies as a member of the press has become a major debate in the last two decades, as legacy media give way to new forms of publication and distribution. This is important because laws meant to protect journalists at work may not protect documentary filmmakers following the same procedures as their reporter cousins. In the 2011 case against filmmaker Joe Berlinger regarding his film Crude, a U.S. appeals court ruled Berlinger did not hold reporter’s privilege to protect him from turning over his film outtakes because he did not have the editorial independence needed to make him a journalist. That ruling puts filmmakers on weak footing unless specifically protected by shield laws granting that privilege. There will be more on shield laws in a later section of this guide.
As most of the First Amendment guarantees addressed in this section are available to all in the United States, filmmakers are covered under the protections journalists have won.
Recording in public spaces
The law allows a filmmaker on public property to record film or video of anything in plain view from that property. That includes government buildings, children, private people and nearly anything or anyone else seen from that vantage point (there are possible civil claims from using a long lens to shoot into a private space, for instance). Laws vary in different states regarding the recording of audio from people in public places. Some restrict it under state wiretapping laws. But the bottom line is that it is legal to capture video images from a public place with almost no restrictions.
Filmmakers most often run into problems with police telling them they cannot shoot video of what are sometimes considered high-risk targets for terrorism: train stations, oil refineries, schools, etc. In all these cases, as long as the camera is shooting from a public space from which anyone coming or going can see these facilities, it is legal to shoot them. But police may be uninformed about the law regarding these places, so the filmmaker may still end up at odds with the authorities.
If police order a filmmaker to stop shooting, the filmmaker should politely assert the right to shoot in that place. Police can claim a filmmaker is interfering with law enforcement operations, which is an offense for which one can be arrested. If an officer makes that claim, the filmmaker should stop shooting and step back to avoid arrest—the courts are more likely in these cases to believe the officer’s claim than the filmmaker’s. In most cases—unless the filmmaker is out to get the confrontation on camera—it is better to back off from the threat of arrest and try to regroup to shoot elsewhere.
Police may not generally demand a filmmaker turn over media for confiscation or destruction, or demand to inspect the camera and view the footage without a warrant. Searching a camera by inspecting its video contents usually requires a judge to issue such a warrant.
If a filmmaker is stopped or detained by police while working, she should always remain polite and calm. The filmmaker should never physically resist a police officer. If stopped, the filmmaker should ask if she is free to go. If the officer says the filmmaker cannot go, then she is officially being detained, which requires the officer to have a reasonable suspicion the filmmaker has committed or is about to commit a crime. Until the filmmaker is officially detained, she is considered to be cooperating voluntarily with police. If detained, the filmmaker should state she has the legal right to be filming where the incident took place and state she does not consent to any search or destruction of any contents on the camera. If the officer reaches for the camera—even after that statement of non-consent—the filmmaker should not resist and should once again state she does not consent to the search. Doing otherwise could result in a resisting arrest charge that would be prosecutable.
Recording police activity
No one can deny the impact that video of police misconduct has had on the current debate about police use of force and the criminal justice system in general. Police often intimidate or arrest those attempting to record their activity, sometimes confiscating or destroying camera equipment in the process. What is still very much in the courts is just how absolute a right people have to record police action. Recent cases have strengthened the claims from those who say the right to record police doing their job exists as a First Amendment freedom and a check on the power of a governmental agency. State laws vary, but two-thirds of states have specific laws allowing the recording of police. It is always wise to know the law in the specific state in which the recording will take place. In most states, secret recordings do not carry as many rights as public recording.
If approached by the police, the person recording should respond to questions. It’s often best to say something along the lines of, “Officer, I’m not interfering. I’m asserting my First Amendment rights as a documentary filmmaker to record you.” Be prepared that police officers may incorrectly assert that only “journalists” have First Amendment rights.
If asked for identification, the filmmaker should know if the state in which she is filming requires her to produce one. If there is no law requiring a person to produce identification, it is not necessary to show an ID. As noted in the previous section, the filmmaker should ask is she is being detained or if she is free to go. If told she is free to go, then the filmmaker can leave. She can also choose to continue to shoot in the same space, though that risks an escalation of the confrontation. If she is detained, the filmmaker may still not have to show an ID, but may choose to do so to avoid more escalation. In no case should the filmmaker lie to the police.
If police say that recording them is against the law, it’s good to know the local laws and recent court rulings and politely quote those to the police. The filmmaker should follow any instructions to move or step back so that she is not violating a lawful police order—an offense that can lead to a prosecutable arrest. If the filmmaker feels she has moved beyond a reasonable distance and completely out of any area that could interview with police, she should politely assert that to the police if they continue to ask her to move.
If told to stop filming or be arrested, the filmmaker can decide whether to comply, knowing she may very well be arrested if she does not. If put under arrest, do not resist. Continue recording to capture the arrest, if possible. Use your right to remain silent and contact an attorney with whom you have already made prior arrangements in case of an arrest.
Recording in government buildings
In general, the law allows anyone to film or take video in the parts of public buildings that are open to the everyday coming and going of the public, subject to reasonable time, place and manner restrictions. That phrase is vague, but shows the difference of a person’s right to capture video in the lobby of the post office versus that person’s right to march into the postmaster’s office and shoot video of her at her desk. Public spaces in public buildings don’t require any special permission for people to enter, so—in most cases—they do not require special permission for someone to film or record there. Keep in mind that the time, place and manner restrictions require a shoot must not be disruptive to the operation of the office—and it is often too easy to use that as justification to eject unwanted camera people.
For shoots where a conflict at the location for the shoot is not expected, it is often better to obtain permission before shooting. That is not a legal requirement, but rather, a way to make the assignment go more smoothly.
There are some restrictions on the books, however, that do require prior permission. For instance, the latest Homeland Security restrictions allow photography inside federal buildings (not otherwise off-limits by specific laws) only with the permission of the tenants of the space to be photographed.
Hospitals and healthcare facilities face their own challenges protecting the privacy of their patients’ health information under the Health Insurance Portability and Accountability Act (HIPAA). While this act will be covered more in a later section, it is important to note that HIPAA requirements have pushed nearly all public healthcare facilities to a level of security that will prohibit filming or video recording nearly everywhere in their premises. Permission is almost always needed to enter public hospitals and healthcare facilities with cameras.
Courthouses and courtrooms are a specific case handled differently than other public buildings. They will also be addressed in a later section.
Finally, in a post-9/11 world, airports provide a complex space for shooting video. That will be addressed in the next section.
Anyone who travelled by airplane prior to 9/11 knows how much procedures at the airport have changed since the terror attacks. In the days before Homeland Security and the TSA, flyers moved more freely in the airport, as did journalists and filmmakers shooting film or video. The stricter security rules that came following the September 11 attacks have altered how we travel and—in some cases—how we can record how we travel.
Despite the fact it seems that TSA rules would be the strictest when it comes to airport recordings, the agency is fairly open about recording around its facilities. The agency does not expressly prohibit filming or recording at or around its screening facilities in airports. Its only restrictions are that the recording does not impede the flow of the screening process for others and that what is appearing on monitors is not captured.
But the airport situation gets more complicated when the interests of state and local jurisdictions come into play. Some state and local jurisdictions have gone beyond the TSA’s basic standard and have enacted their own restrictions on airport photography and recording. The only way to know the law for sure is to check on local and state laws for each jurisdiction before recording takes place.
Once at the gate area and on board the airplane itself, the rules change. The airplane is the private property of the airline and courts have recognized the gate area falling under the private control of the renting airline. That means each airline’s rules about photography and recording now come into play, superseding any governmental laws there. Nearly every airline has written policies prohibiting photography and recording of its property and employees without consent. These rules are very unevenly enforced, but when enforced, can lead to the removal of the offending photographer from the plane or the airport property.
One final vestige of 9/11 concern can be found when filming or recording at an ever-lengthening list of potential terrorist “targets.” News crews and filmmakers have been asked to leave or even detained by authorities after recording near railroad yards, oil refineries, water treatment plants and more. Local authorities are usually the agency that tries to stop recording around these sites, but they often quote federal regulations as the reason for the stop. As stated in an earlier section, any recording from public spaces of anything that can be seen from those public spaces is legal. Local authorities are often misinformed and any filmmaker approached should follow the steps cited earlier to assert his right to shoot there. One possible exception could be around certain farming or livestock operations in states that have enacted so-called “Ag-Gag” laws meant to limit animal rights activists on or near agricultural property. These laws prohibit much shooting access in and around those agricultural facilities. Journalism and animal rights groups have fought these laws in court as being unconstitutional and have won some important cases. Still, filmmakers must check in the states in which they plan to film to see if these laws exist. Eight states have such laws at this point, with more considering legislation to establish them.
Unlike in some other countries, the United States does not license journalists, fearing that practice could lead to restrictions that run afoul of the First Amendment. While journalists agree that is a good thing, it can make it hard for photographers, filmmakers and others to show identification that gives them access to “press only” scenes and events. There are a number of ways for filmmakers to obtain media or press credentials that can ease their way into certain events or scenes.
The simplest approach to obtaining a media press pass is to make one’s own. This is common among journalist organizations both large and small. Anyone with basic Photoshop skills and a laminator can make a card that will work to obtain access to many scenes—a nearly limitless supply of templates are available online. Filmmakers should use the name of their film company as the issuing organization, include a title (“photographer” often gets the most access) and a photo, along with name, address, birth date, etc. This “employer”-issued approach produces a card that will often be all one needs to enter a location that’s being reserved for press only. There’s no reason every filmmaker should not have one of these self-made credentials available for use at all times.
There are some associations dedicated to the First Amendment rights of citizen journalists, bloggers and others sometimes left out of authorities’ definition of journalists. These groups sometimes offer free media credentials as part of membership. Other photography associations offer press passes to their members at little or no charge.
Government-issued IDs add an extra layer of weight to access claims, but come with a bit heavier burden of proof on the filmmaker to obtain them. Local and state jurisdictions have their own procedures to obtain these IDs. They are often free, but sometimes require a small application fee. The biggest hurdle for independent filmmakers is that the passes usually go to representatives of media organizations. Requirements for proof of that organization vary, but a film company that does a lot of journalistic-style work should be able to qualify in many of these localities.
The final type of credential is that obtained to attend and cover a specific event, like a concert, athletic event or political convention. These credentials are controlled by the organizers of the event and are issued at the discretion of those organizers. There is always an application process for these credentials to which filmmakers can apply. It may take some persistence and personal contact with organizers to make a case for granting a credential.
Shield laws and reporter’s privilege
Thirty-seven states now have shield laws of one form or another that allow journalists to protect the identity of their sources. Shield laws protect reporter’s privilege, a legal concept that holds that journalists need to be able to keep sources and other information secret from government authorities for two main reasons. First, sources will be more comfortable speaking to journalists knowing that what they say will not fall into the hands of government investigators. Second, the idea of privilege stems from the need for journalists to be seen as independent from the government. Both of these reasons help support the role of journalists as checks on those in power.
One important note is that there is no guarantee of reporter’s privilege written into the Constitution or the First Amendment, just as there is no federal shield law. The reporter’s privilege concept and what shield laws do exist in the states have risen from court rulings, local lawmaking and governmental procedural rules. Journalism organizations have fought for a single federal shield law for years, but have met resistance from both parties in the White House.
The shield laws that protect reporter’s privilege in the states where they are on the books vary in how much protection they give. Some states grant absolute privilege, meaning a journalist can never be subpoenaed or forced to give the identity of a source to authorities. Some add protection for reporting notes or other information that might lead to the identity of a protected source. Many states put limits on privilege—called a “qualified shield law”—protecting sources in most cases, but requiring reporters to testify to other matters in a case, or lose their privilege altogether should they become a party in the case.
Governments looking to limit the impact of those shield laws have attempted to limit the definition of “journalist” to those working for traditional media organizations. An effort mainly led by the blogging community has worked to expand that definition, including those who do journalistic-style work on their own. Most broader definitions favored by this movement would include documentary filmmakers.
If a filmmaker working on a project receives a subpoena, here are the steps to follow. First, she must not ignore the subpoena. A shield law will not protect a journalist or filmmaker from contempt of court charges or fines. After getting a subpoena, the filmmaker should contact an attorney. Groups like the Reporters Committee for the Freedom of the Press (http://rcfp.org) will help find an attorney with experience in this area. The attorney will work with the filmmaker to determine which, if any, state shield laws or court decisions protect all or part of the material being subpoenaed. If the filmmaker is part of a larger team, the attorney will work with that team to manage the subpoena according to any pre-existing company policies. Material that has already been publicly released—such as a completed film—is usually released to the authorities without question. Unreleased cuts, outtakes, interviews and other material not yet seen by the public may be subject to a refusal to comply with the subpoena. A filmmaker should NEVER destroy any materials once she has received a subpoena.
Attorneys expert in these cases recommend filmmakers set up a plan and policies before ever facing a subpoena. They should find an attorney who will handle the case if the need arises. Develop internal policies for how long outtakes will be kept and when those, notes and other reporting materials will be destroyed, if ever. Finally, all filmmakers should know the basics of the shield laws in the states in which they are working.
Prior restraint and gag orders
There are few rights journalists have under the First Amendment that have as solid a legal footing as the restriction against prior restraint—censorship of a piece of journalism before it is published. Since the landmark Near v. Minnesota case in 1931, journalists have enjoyed a nearly-bulletproof protection allowing them to publish their work in almost every case. This right extends to filmmakers and the release of their content. This right to publish does not, of course, protect journalists or filmmakers from claims of libel or other suits after the publication of the material. Those are separate issues for post-publication remedies.
While journalists enjoy this strong protection, courts often employ gag orders (or protective orders) to prevent parties to a case from speaking in public—usually specifically to journalists and filmmakers. Judges can issue these orders, claiming to be working to protect the right to a fair trial. Critics say the orders infringe on the First Amendment rights of journalists to cover a court case and on the First Amendment rights of the parties in that case to speak freely. If a judge issues a gag order on a case a filmmaker is covering, the filmmaker should get the order in writing and examine it for the details of precisely what is prohibited. Working right up to the edge of the order is often a way to continue reporting on the case. A filmmaker may seek to challenge the gag order under constitutional grounds. In that case, he should seek out an attorney to file to challenge the order.
Libel and defamation
Simply stated, libel occurs when false or defamatory statements about a person are published to a third person. The First Amendment offers some protection to those publishing the statements, but the case law is complex and states vary on the burden put on plaintiffs and defendants to prove or disprove libel. Libel differs from slander due to its publication. Slander is merely statements spoken to another person.
For libel to exist, there are five elements that must be present. First, a person or persons must be identifiable in what is published to be able to be defamed. That can be through direct identification, where the person or persons are named, or through indirect identification, where the person is not named but can still be identified through what is published. Second is the matter of publication itself. Publication means the wide distribution of the potentially defaming material through any number of means including printing, broadcasting, public showing and more. Third, the content must defame, meaning if must contain untrue statements that hurt the reputation of the offended party or expose that party to ridicule, hatred, mockery or other harmful response. Fourth is the matter of fault on the part of the person publishing the material. That party must be at fault in knowing it was untrue, having malice toward the person about which the statements are made, or negligent in the manner in which the facts were discovered, leading to them being false. Finally, the harmed party must show damage, either directly through a monetary cost or indirectly through loss of reputation, pain and suffering or other harm.
There are four defenses against libel on the part of the party doing the publishing. First and foremost among these is truth. If the material is true, it does not matter if another party is harmed. Truth is always an absolute shield against a libel claim. The second defense is privilege, the right to speak without fear of reprisal in certain specific circumstance. These rights fall on federal and state legislators speaking on the floor of a legislative body, to anyone testifying in court and in certain executive documents of the government. Journalists and filmmakers enjoy qualified privilege when publishing verbatim accounts of these privileged statements. A third defense revolves around the status of the person or persons about whom the publication is made and their status in society. People who thrust themselves into the public spotlight as public figures (politicians, actors, sports figures, etc.) are subject to fair comment and criticism in the form of published opinion. Likewise, public officials (those holding public office whether elected or appointed) are also subject to the same sort of criticism. Finally, there are a number of defenses where the actions of the publisher can thwart a libel claim. These can include when the publisher issues a retraction, when the publisher obtains consent from the would-be plaintiff to publish the material or when the reputation of the person is already ruined and cannot be further harmed by the reporting.
Regardless of the strength of the case, any publisher can be sued by anyone for anything published. Filmmakers should work from an attitude of not if they will be sued, but when they will be sued. Filmmakers should work with the utmost care that material to be published in a work is true. That provides the best protection against libel claims. Care should also be taken that the procedures to check facts are stringent and follow a standard set of procedures for every fact check. This rigor helps protect against claims that a publisher has a “careless disregard for the truth,” meaning work was not put into reasonable verification. Further still, statements made by a filmmaker that she was out to get someone with her work can lead to a claim of “actual malice,” defined in the landmark New York Times Co. v. Sullivan case in 1964 as publishing despite the fact one knows the material is false or makes no reasonable effort to determine if it is false, publishing to damage someone on purpose.
Aside from these procedural steps to protect themselves from libel claims, filmmakers should seek errors and omissions (E&O) insurance on their projects. The policy pays to defend the filmmakers in the case of a libel or defamation case (as well as claims of intellectual property theft, breach of contract and more) and pays the judgement should the filmmaker lose the case. Costs for the insurance vary based on the type and scope of the production.