Atlanta cites SCOTUS ruling in repealing restriction on street photography

By David Pendered

Atlanta is citing a ruling in June by the U.S. Supreme Court as the reason it is repealing a city code, which has pitted Mayor Kasim Reed’s administration against members of the national media, that makes it a crime, in certain circumstances, to take a photo of a person outside a business for the purpose of selling the photo.

Fox Theatre, Terry Huey

Atlanta is repealing a restriction on street photographers after a photographer said he had an encounter with an Atlanta police officer outside the Fox Theatre. Credit: Terry Huey, via theuntappedsource.com

Atlanta’s municipal code section on sidewalk photographers creates the “offense” of taking a photo of a person outside a business, for the purpose of selling the photo, without the prior written consent of the business owner. The code section does not provide a ready definition of whether the offense is criminal or civil, or describe the penalty.

The city is resting its case for repealing the ordinance on a Supreme Court ruling in favor of a church that contended Gilbert, Ariz., had violated the church’s First Amendment rights by limiting the size of signs announcing church services. Evidently, Gilbert has an array of restrictions on signs.

Justice Clarence Thomas wrote in the ruling for the majority: “Content-based laws – those that target speech based on its communicative content – are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”

Atlanta’s ordinance became controversial in September, after an Atlanta police officer reportedly told a news photographer that the officer would arrest him and confiscate his equipment if he didn’t stop taking pictures, according to a letter the National Press Photographers Association sent to Atlanta Mayor Kasim Reed, according to a report in petapixel.com, a blog that covers photography.

One photographer said he was, “driven away from a public street near Atlanta’s Fox Theater [sic] while the upcoming Hollywood film Passengers was filming in the area,” according to the Oct. 2 letter from the NPPA posted on the petapixel.com page. The alleged incident occurred Sept. 28.

The NPPA letter said it represented itself and 11 other organizations:

Atlanta Councilman Kwanza Hall

Atlanta Councilman Kwanza Hall

  • American Society of News Editors;
  • American Society of Media Photographers;
  • Associated Press Photo Managers;
  • Associated Press Managing Editors;
  • Association of Alternative Newsmedia;
  • Atlanta Press Club;
  • Georgia Press Association;
  • Reporters Committee for Freedom of the Press;
  • Society of Professional Journalists;
  • Student Press Law Center;
  • The Associated Press.

The letter to Reed, signed by NPPA General Counsel Mickey Osterreicher, concluded:

  • “Nationwide, photographers are increasingly subject to harassment by police officers, who, under color of law, cite privacy, safety and security concerns as a pretext to chill free speech and expression or to impede the ability to gather news. Given the experience of one of our members this week in your city, the NPPA is concerned that this ordinance has provided the police with unbridled discretion to abridge the rights of photographers covering matters of public concern.
  • “It is our position that this facially defective regulation will only further contribute to the erroneous belief by law enforcement that public photography may be arbitrarily limited or curtailed. We therefore respectfully request that it be repealed immediately. In the alternative, we propose to work with your office to draft revised language that would be more narrowly tailored to serve a substantial government interest as a reasonable time, place and manner restriction on commercial photography.
  • “Thank you for your attention in this matter. I look forward to your prompt response so that we may resolve this issue as expeditiously and amicably as possible.”

The Atlanta legislation, introduced by Atlanta Councilmember Kwanza Hall, is slaqted for discussion Tuesday in the meeting of the council’s City Utilities meeting. The paper states:

  • “WHEREAS, on June 18, 2015, the United States Supreme Court issued a ruling in Reed Town o f Gilbert (“Gilbert”) that substantially changes the First Amendment analysis applied to laws which regulate expression (Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015)); and
  • “WHEREAS, the City is re-evaluating its ordinances that affect expression, applying the Gilbert analysis, to determine if any ordinances should be repealed; and
  • “WHEREAS, the City has determined that Code section 30-1316 should be repealed.”

 

David Pendered, Managing Editor, is an Atlanta journalist with more than 30 years experience reporting on the region’s urban affairs, from Atlanta City Hall to the state Capitol. Since 2008, he has written for print and digital publications, and advised on media and governmental affairs. Previously, he spent more than 26 years with The Atlanta Journal-Constitution and won awards for his coverage of schools and urban development. David graduated from North Carolina State University and was a Western Knight Center Fellow. David was born in Pennsylvania, grew up in North Carolina and is married to a fifth-generation Atlantan.

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