All Over Albany

The airport, photographs, and free speech

Updated

You probably saw the video this week from ALB -- two people recording their effort to hand out flyers about opting out of the full body scan, an airport official asks them to stop, they say no, and an Albany County sheriff's deputy tells the airport official the two people are exercising their rights. The video has racked up more than 100,000 views on YouTube.

The airport released a statement saying its "concern -- as it always is -- was for the safety of the passengers and the public who were in the airport." [TU]

So, what exactly are a person's rights in this sort of situation?

Well, like most things, it's complicated.

Let's start from the outside -- literally -- and work our way inside. You're totally free to stand outside -- say, on the sidewalk -- and take photos of pretty much anything. And you'd also be free to hand out information or talk to people as they walk by, as long your actions don't rise to the level of harassment. This is true of pretty much any public place (one of the few exceptions: some military facilities). It's all straightforward 1st Amendment stuff.

OK, let's head inside. And here's where things get a little complicated. Because even though the airport is a public place -- it's owned by Albany County and leased to the Albany Albany County Airport Authority -- it's not like standing on the sidewalk. In legal terms, the question is whether the airport is a "public forum."

We got in touch with Robert Heverly, an assistant professor of law at Albany Law School, for some explanation. He said to us via email:

Not all publicly owned areas are "public forums" for free speech purposes. Publicly owned airports have been specifically held by the U.S. Supreme Court to not be "public forums" (or "fora" if you prefer), but regulations that affect speech must still be reasonable. In a pair of cases in 1992, one case concluded a ban on non-profit/religious solicitation inside the airport was constitutional while the other case concluded that a ban on leafletting was unconstitutional.

Those 1992 cases involved the International Society for Krishna Consciousness -- the Hare Krishnas -- and arose from the Port Authority of New York and New Jersey trying to stop the the org from distributing pamphlets and asking for money in airport terminals. The court voted 6-3 against allowing solicitation, and 5-4 in favor of allowing leafletting.

So what does that mean for photos? From the TSA's perspective, it's pretty straightforward:

TSA does not prohibit the public, passengers or press from photographing, videotaping or filming at security checkpoints, as long as the screening process is not interfered with or slowed down. We do ask you to not film or take pictures of the monitors. While the TSA does not prohibit photographs at screening locations, local laws, state statutes, or local ordinances might.

Heverly says he hasn't seen any cases where photography was totally prohibited at an airport. But could it be? Again, via an email from him:

We could ask the question, though, of whether photography is more like leafleting or is more like soliciting donations. If it's more like leafleting, then a public airport owner likely couldn't prohibit it entirely; if it's more like soliciting donations, prohibition might be allowed. When we look at it, it's somewhere in between. People might not want their pictures taken when they're taking off shoes, jackets, taking out personal belongings, and dealing with security. So it could affect airport operations. But it's also not at all the same thing as asking people for money. So a complete ban might not be permitted, but it might if the government entity could prove photography caused problems with airport operations...

So, talking to people, even handing out material, falls under 1st Amendment protection at a public airport (provided a person isn't being unreasonably disruptive or harassing anyone) -- but asking for money does not. Photography probably also has some protection. And as far as the TSA is concerned, unless there's some some state or local law restricting it, you are free to photograph.

That said, there are some limits on free speech -- but it's hard to say where that line is located. As Heverly explained to us:

We can define the outer realms (talking about being tired from getting to the airport -- that is, something innocuous -- would be at one end and talking about bombing a plane or attacking a TSA officer would be at the other), but the middle line is difficult to define outside of the specific facts of a case.

In that vein, the TSA warns that "belligerent behavior, inappropriate jokes and threats will not be tolerated. They will result in delays and possibly missing flight departures. Local law enforcement may be called as necessary."

Places that seem public but really aren't

There are a lot of places that are "public" in the sense that they're open and the public gathers there, but they're not "public" in a legal sense. A mall like Crossgates is a good example -- it's private property. And as such, if they ask you to leave because you're taking photos or handing out info or whatever, you have to leave.

You might remember this was an issue in 2003 when a man wearing a "Give Peace a Chance" was asked to leave. He didn't, the police were called, and he was arrested for trespassing. The NYCLU filed suit, arguing that the mall was subsidized by public money and thus was a public place in which people should have free speech rights. A state appeals court didn't agree.

Knowing the law

There have been a lot of stories in recent years about law enforcement agencies not upholding people's rights to take photos in public -- even in the face of people citing the proper laws. So it's notable in the ALB situation that the Albany County sheriff's deputy acted on behalf of the two people filming -- and did so gracefully.

More resources

There are a lot of resources online with information about the rights of photographers. A few of them:
+ Know Your Rights: Photographers | ACLU
+ Know Your Rights: Photography in Public | Lifehacker
+ Criminalizing Photography | NYT

And while it doesn't have anything do with 1st Amendment rights, a post by Rob points out that the airport could have handled this situation better.