A number of national press organizations have expressed concern about the arrest of an Ohio University graduate student, for allegedly interfering with police and emergency personnel while taking pictures during the Athens uptown Halloween celebration earlier this fall.
Police say Nicolas Tanner was getting in the way of paramedics who were handling an emergency call on Franklin Avenue, that he refused to move, and that he tried to flee when Athens Police attempted to arrest him. He is charged in Athens County Municipal Court with obstructing official business and resisting arrest.
Tanner's supporters say the 28-year-old, who is studying photojournalism, was exercising his First Amendment rights to photograph something happening in a public place.
Those supporters include the National Press Photographers Association (NPPA); the Associated Press (AP); the American Society of News Editors (ASNE); the Student Press Law Center (SPLC); the Society of Professional Journalists (SPJ); the Reporters Committee for Freedom of the Press (RCFP); and the American Society of Media Photographers (ASMP).
Last month the NPPA sent a letter to Athens Police Chief Tom Pyle, and copied it to Mayor Paul Wiehl. In the letter – to which the other above-named organizations appended their names – the NPPA urged the city to drop the charges against Tanner, and offers to work with Athens to help develop policies "to avoid similar situations… occurring in the future."
In the message, NPPA General Counsel Mickey Osterreicher also questioned the police version of the events that led to Tanner's arrest, and argued that the arrest was made in violation of important constitutional freedoms.
The criminal complaint against Tanner alleges that on Oct. 28, around 1:30 a.m., he kept "getting in the way" of emergency personnel while he was trying to take photos of a person the paramedics were trying to load into an ambulance. This would have been at the tail end of the big Saturday night uptown Halloween bash.
The complaint for obstructing official business claims Tanner was attempting to take photos of the patient and "refuse(d) to get out of way." In the complaint for resisting, the arresting officer claims Tanner "refused to let squad place patient in (the ambulance) by getting in (the) way taking photos."
Osterreicher's letter challenged the accuracy of this narrative. By NPPA's understanding, it stated, Tanner was "standing on a public sidewalk photographing a matter of public interest from a reasonable distance away from the subjects," when "one of the ambulance crew approached him and incorrectly told him he could not take photos of the scene."
When Tanner objected that he did have a right to take pictures, according to the letter, the paramedics called police and two mounted officers arrived. "They too incorrectly ordered Mr. Tanner to stop taking pictures and then proceeded to block his access with their horses while physically using them to push him away," Osterreicher added in the letter. When the student held his ground on the sidewalk, police arrested him, it said.
In the view of the NPPA, Osterreicher wrote, "Mr. Tanner was doing nothing more than exercising his First Amendment rights to gather and disseminate news and therefore was not acting in violation of any law."
Osterreicher acknowledged Tuesday that obviously he didn't witness the incident, and that NPPA's understanding of what happened is essentially coming from Tanner.
If Tanner's account is accurate, however, the attorney said, it raises concerns that police in Athens, like police in other communities, don't understand that they can't forbid picture-taking at an emergency situation.
"This is a problem that we continue to see," he said. "There are so many people who believe that if they tell somebody to stop taking pictures in public, that there's an authority to do that, and there isn't."
If Tanner was standing on the sidewalk as he claims, taking pictures of something on public view, and not actively interfering with the emergency personnel, Osterreicher said, he had a right to keep doing that.
He added that in many cases like Tanner's, police simply claim a defendant was interfering with official activities, and leave out the fact that he or she was taking pictures.
"What I find interesting here is, this is one of the first times I've seen where they talk about photography," he said. "The fact that they recognize that he's taking pictures is interesting."
He also noted that in his view, whether or not Tanner was on assignment for a news publication – there's no indication in court documents that he was – is legally irrelevant. Some case law, Osterreicher said, indicates that the rights of the press and those of the public are "co-extensive" as far as taking pictures of public events – in other words, someone not employed as a journalist has no fewer rights in this area than a working reporter.
The attorney acknowledged that right-to-privacy issues might arise in connection with photographing an emergency patient, but added that these would not kick in until the pictures were published somewhere – they would not come into play at the time the pictures were being taken.
Osterreicher noted that both Athens and the state of Ohio have laws against obstructing official business; the state statute, however, includes language not in the city ordinance, stating that nothing in the law "shall be construed to limit access or deny information to any news media representative in the lawful exercise of the news media representative's duties." He suggested that with two overlapping laws such as these, the one that's more restrictive in limiting police powers over free speech should govern.
Tanner, who has pleaded not guilty to both charges, has a pre-trial hearing scheduled for Jan. 16. His attorney, Patrick McGee of OU's Center for Student Legal Services, said Tuesday he did not wish to discuss the case at this early juncture.
James Stanley, the Athens city prosecutor who's handling Tanner's case, said Wednesday he's aware of the NPPA letter, but that the First Amendment issue doesn't seem to be playing a big role, and the city isn't planning to dismiss the charges.
"At this point I've had brief discussions with my boss, (Law Director) Pat Lang," Stanley reported. "But it's our position right now that we will be proceeding on the charges."
He said so far, McGee hasn't given any indication, either verbally or through court filings, that he intends to raise the constitutional issue. However, he added, there's still "plenty of time" for the defense attorney to file motions on this issue if he wants to.
Terry Eiler, director of OU's School of Visual Communication, declined to comment on Tanner's case specifically. He said, however, that the problem of authorities believing they can order photographers to stop shooting in public spaces is widespread.
"It's an ongoing problem," he said. "If you're in a public place, whatever that public place may be, to gather images and act as a photojournalist is absolutely within the rights of photojournalists and other citizens."He said he has discussed the possibility of bringing Osterreicher to Athens to offer a workshop on the issue.