Viral Video Prompts Questionable NJ Municipal Ordinance

Socrates said, “While I might disagree with what you say, I will defend to the death your right to say it.” If he had an iPhone he’d have added, “…and photograph it.”

Some elected officials in Helmetta, New Jersey do not agree.

They took swift action in the wake of a viral video showing a borough police officer angrily denying a public records request. It banned recording in all public buildings, unless the photographer obtains a permit.

“Obama has decimated the friggin’ constitution, so I don’t give a damn,” Richard Recine is captured stating. “If he doesn’t follow the Constitution, we don’t have to.”

Amidst the public backlash, Recine resigned and the borough launched efforts to prevent a similar incident. As NJ.com reports, one of the proposals is an ordinance that would restrict photography inside public buildings.

 Under the proposed ordinance, Helmetta would require visitors to municipal buildings to obtain a photography permit, which would be issued at the borough’s discretion. Authorized photographers would be subject to certain restrictions. For instance, the ordinance states that permit holders “shall not obstruct or impair any Borough employee from carrying out his or her duties, or interfere with the normal course of Borough business operations” and “shall not obstruct the investigation or prosecution of a crime by any member of the Helmetta Police Department.”

Violators could face monetary fines of up to $2,000 in fines as well as jail time. The ordinance does make exceptions for public meetings, which are subject to the state’s Open Public Meeting Act.

Nonetheless, the ACLU of New Jersey is concerned. “This is far too broad,” Legal Director Ed Barocas told NJ.com. “The idea that you would have to let the government know and to get approval to spontaneously obtain or disseminate information is a serious intrusion on free speech and freedom of the press.”

As currently drafted, the ordinance is certainly subject to legal challenges. Members of the public are generally permitted to take pictures or record video in public places. This includes the activities of police officers and other municipal employees. The general rule is that if a location is open to the public, photography is not restricted.

Of course, not every limitation is unconstitutional. Under existing Supreme Court precedent, “to achieve First Amendment protection, a plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed.”

While lower courts have interpreted free speech rights to extend to photography, the image or recording must express a message. For example, taking pictures with the intent to gather information about what public officials do on public property would likely be protected; meanwhile, personal photography of the building architecture may not.

Even in a public forum, the government may impose “reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” This includes limitations on photography and video recording. One common example is the restriction of photography near military installations or nuclear power facilities, where security concerns trump the right to free expression.

In order to survive legal scrutiny, Helmetta will have to clearly articulate why the restriction is necessary (i.e. what it seeks to protect) and how it plans to limit the impact on free speech rights. It will be interesting to see if the city council revises its ordinance to further reflect these legal concerns. A final vote on the ordinance is scheduled for September 24.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

 

Viral Video Prompts Questionable NJ Municipal Ordinance