When Taking Pictures Gets You Arrested

On a chilly, rainy afternoon last month, Tyrel Linkhorn, a reporter for the Toledo Blade, and Jetta Fraser, a staff photographer, were sent on a boring assignment to take file photos of a factory. It ended with a lawsuit against Secretary of Defense Chuck Hagel and a debate over First Amendment rights in the post-9/11 era.

After covering a press conference at the Ford engine plant in Lima, Ohio, on March 28, Linkhorn and Fraser drove seven miles southwest to take some photos of a plant where General Dynamics is contracted by the U.S. military to make M1A1 tanks that are sent to Saudi Arabia, Egypt and elsewhere. Linkhorn parked the car at the plant's entrance off of Buckeye Road, a main drag cutting across Allen County at a sharp diagonal. Fraser got out of the car and started snapping pictures from outside the facility's entrance, according to the lawsuit. About two minutes later and with the job done, she got back in, and Linkhorn started to drive back to the newsroom, some 80 miles away in Toledo.

As they waited at a traffic light to get back on the road, the journalists' car was intercepted by three military police officers, in uniform and toting guns. The officers demanded to know why Fraser was taking photos. The journalists explained that they were on assignment for The Blade and handed over IDs. When one of the military police officers asked Fraser for a driver's license, she responded that she hadn't been driving. That's when things started to get ugly, the plaintiffs say.

The military police handcuffed Fraser and conducted an extensive pat-down. She says one officer threatened to "go under your bra." The two were held for over an hour, and for the better part of that time Fraser remained in handcuffs. When the military police finally let them go, it was without Fraser's camera and memory cards. The equipment was returned several hours later, after Ohio Senator Rob Portman's office called General Dynamics. But the cameras came back with about 38 photos deleted.

A week after the incident, The Blade filed a lawsuit naming three military police, one employee at the plant, the commander in charge of the facility and Secretary of Defense Chuck Hagel as defendants. Fraser, Linkhorn and The Blade claim that they had their constitutional rights to free speech violated, along with the Fourth Amendment's prohibition on unreasonable search and seizure and the Fifth Amendment right to due process. The plaintiffs also say they were not trespassing on military-owned property. And the facility can be viewed on Google Earth.

The Army says it is against the law to take photographs of the facility without obtaining permission from the commanding officer. "Signage to this effect is visible and warns that any such material found in the possession of unauthorized personnel will be confiscated," Lt. Col. Matthew Hodge, the commander of the facility, said in written statement sent to Newsweek. Donald Jarosz, a spokesman for the Army department in charge of the Lima plant, said that "it is standard Army policy not to comment on pending litigation."

Press freedom advocates say that there is more at stake in this case than two Toledo-based journalists and that, in fact, what happened to Fraser and Linkhorn is par for the course with law enforcement in the United States, especially in the post-9/11 era when national security is regularly cited as an excuse to detain reporters. The hope for free press advocates and The Blade is that this lawsuit will send a message to the military and other agencies that photographers—professional and amateur—shouldn't be detained for taking pictures.

"The truth is that we very often see journalists' rights cut off by people in authority, typically law enforcement and military personnel," says Ken Paulson, the president of the First Amendment Center. "This went a little further than most, but we see this at traffic stops in America. Police are forever telling reporters to stop taking pictures or to stand back another hundred yards. This is a more dramatic example—and it's certainly troubling—but it's also not unheard-of."

Examples abound. In October 2013, security guards confiscated cameras and deleted footage from three journalists trying to enter a National Security Agency facility in Utah. During the 2012 Democratic National Convention, plainclothes police forced a credentialed reporter to delete photos taken at a protest. In June 2011, police arrested two journalists for photographing a public meeting of the Washington, D.C., Taxi Commission. Arrests and confiscation of cameras of citizen journalists—and even tourists—is even more common, as documented by the website Photography Is Not a Crime.

The climate of fear that followed the September 11, 2001, terrorist attacks has helped create a culture in law enforcement that allows police to crack down on journalists. "Immediately after 9/11 there was a push for almost a kind of World War II-level of restriction, where anyone taking a picture might be a spy," says Gregg Leslie, an attorney with the Reporters Committee for Freedom of the Press. That attitude continues, free press advocates say, and has become the pervasive mindset among law enforcement.

"It certainly has also been the case over the last 10 to 15 years that more and more impediments are being placed in the way of media who are interested in covering the military and military operations, and domestic activities that involve the military or the national security apparatus," says Fritz Byers, a lawyer for The Blade. "I think this case is a reflection of those conflicts."

Military police told the two Blade journalists that they "looked like terrorism suspects," according to Dave Murray, the paper's managing editor.

It is legal to take photographs or video of anything that is visible in public space, including federal buildings, police and government officials, according to the American Civil Liberties Union. Because Fraser was photographing the plant from a public road, the Blade's lawyer and other advocates are convinced they have a strong case.

"The principles that are at issue here are very well settled," says Byers. "I think it's very well established that the media has the right to publish information—including photographs of scenes or buildings or materials—that is viewable to the public." And the fact that the Lima plant is visible on a Google Street view undermines the idea that it might be a highly classified site.

This isn't the first time The Blade has been in this situation. In 1997, security officials from the National Transportation Safety Board (NTSB) detained a Blade photographer who was covering a plane crash in Michigan. They also deleted his photographs. After the newspaper sued, the NTSB settled, paid the newspaper $26,000 and admitted that it had "compromised the constitutional rights of [the photographer] and The Blade."

But even if the principles are well settled, advocates hope that a victory could send a message throughout the Department of Defense that the military should respect journalists' rights. "The only way to get these issues resolved is if federal officers learn that they might get sued," says Leslie.