TEXAS CITY — Police on Monday detained a Daily News photographer who refused to show officers his photographs of refinery workers attempting to mitigate a 500-gallon crude oil spill.
The 45-minute detention and police inquiries about whether the photographs contained images harmful to national security raised freedom of the press questions protected by the First Amendment.
U.S. courts have traditionally ruled that the First Amendment protects citizens against prior restraint, meaning that, while the government can take action against a citizen for stories or photographs after they are published, it generally is prohibited from reviewing or censoring the material before it is published.
Cpl. Tom Robison of the Texas City Police Department, who is also the city’s contact with the FBI’s Joint Terrorism Task Force, said the police department’s policy is to detain anyone photographing the city’s chemical plants. Police then review photos to see if they pose any threat but do not confiscate cameras or photographs.
“There’s no law that says you can’t take pictures from a public roadway, but the issue becomes: Are any of the shots compromising security measures?” Robison said.
Daily News photographer Kevin M. Cox said he took all but nine of his 36 photos of the oil leak on Marathon Oil Co. property while standing near 14th Street at Eighth Avenue. The remainder he shot a couple feet within an unsecured grassy field, he said.
The field, a vacant lot next to the intersection, is owned by Marathon, and when a Marathon security guard asked Cox to leave the field, Cox said he immediately complied. The field had no signage and provided a slightly different vantage point of refinery crews than did the street, Cox said.
Fleming Terrell, a staff attorney with the American Civil Liberties Union of Texas, said police should be respectful of the public’s First Amendment rights.
“Generally, the First Amendment protects the public’s right to document in public places, and people should be able to take photographs without police harassment,” Terrell said. “The police should investigate if someone is taking suspicious photos, but there’s nothing suspicious about taking photos on a public street.”
Robison said he has had overwhelming cooperation from broadcast and print news media when he asks to review video footage or pictures.
Steve Gonzales, director of photography for the Houston Chronicle for the past three years, said his staff has never been stopped by law enforcement asking to see pictures of breaking news events, including the recent crane collapse at a Pasadena plant.
Officials with Houston affiliates NBC, CBS and ABC said police haven’t asked to review video footage and they haven’t shown raw video to police before broadcast.
“We’re pretty strict about that in the newsroom,” said Rick McFarland, assistant news director for KPRC Local 2, the Houston NBC affiliate. “No one from law enforcement can see it without a subpoena, and even with a subpoena, we’ll have our First Amendment attorney fight it in court.”
Shauna Dunlap, a spokeswoman for the FBI’s Houston office, said it’s not against the law to photograph the refinery from a public street, but police ask to see pictures because they want to be sure nothing of a sensitive nature is published.
“Since 9/11, there have been so many threats to refineries that it’s become standard practice,” Dunlap said. “Usually, people cooperate once they understand. He could have inadvertently taken security features that mean nothing to you and I, but those looking to do harm to a refinery would value them.”
Austin Attorney Bill Aleshire, a volunteer with the Freedom of Information Foundation of Texas, said Cox was within his right to deny the police officer’s request.
“The fact that it’s Homeland Security doesn’t mean that Homeland Security operates under a different constitution,” Aleshire said. “They operate under the same constitution that protects the press and businesses’ privacy.”
Aleshire said journalists have gone to jail for less, but he advised The Daily News to turn over the photographs only under court order.
“There’s nothing wrong with asking to see the photos, as long as that’s all it is — a request,” Aleshire said. “If other news media voluntarily show pictures, then what’s next? (Police) being able to expect to edit the stories?”
Robison said Texas City police don’t confiscate photos and strive for a good working relationship with the press.
