NYCLU Lawsuit Challenges Federal Regulation Prohibiting Photography on Public Plazas and Sidewalks

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April 22, 2010 —  The New York Civil Liberties Union today filed a lawsuit challenging a government regulation that unconstitutionally restricts photography on federal property, including public plazas and sidewalks.

The federal civil rights lawsuit was filed in the U.S. District Court for the Southern District of New York on behalf of a Libertarian activist who was unlawfully arrested by federal officers after exercising his First Amendment right to take photographs and digital videos in a public plaza outside of a federal building in lower Manhattan. The lawsuit seeks a court order barring federal officials from harassing or arresting people engaged in noncommercial photography while standing in outdoor public areas near federal buildings.

“In our society, people have a clear right to use cameras in public places without being hassled and arrested by federal agents or police,” NYCLU Executive Director Donna Lieberman said. “We understand the need for heightened security around federal buildings, but the government cannot arrest people simply for taking pictures in a public plaza.”

The complaint names the U.S. Department of Homeland Security, the Federal Protective Service, Inspector Clifford Barnes of the Federal Protective Service and an unnamed federal officer as defendants.

Plaintiff Antonio Musumeci was arrested on Nov. 9, 2009 after recording with a hand-held video camera a protestor in a public plaza outside the Daniel Patrick Moynihan Federal Courthouse in Manhattan.

Musumeci, a 29-year-old resident of Edgewater, N.J. and member of the Manhattan Libertarian Party, was recording an interview in front of the courthouse steps with Julian Heicklen, a libertarian activist who was advocating for jury nullification. They were confronted by Inspector Barnes, who arrested Heicklen.

Musumeci, a software developer for an investment bank, stepped backward and recorded the arrest. Barnes told Musumeci he had violated a federal regulation governing photography and arrested him. Barnes and a second federal agent grabbed Musumeci by the arms and forced him to the pavement as they confiscated the video card from his camera. After being arrested, Musumeci was detained for about 20 minutes and issued a ticket for violating the photography regulation. That charge was later dismissed.

A week later, Musumeci was harassed and threatened with arrest after trying again to record Heicklen at the federal courthouse. Again this past Monday he was harassed by federal officers at the courthouse.

“I do not believe government agents have the legal or moral authority to stop people from filming on public property. In this case, the outcome is particularly frustrating because I was creating political content and engaging in a form of political activism,” Musumeci said. “The courthouse plaza is public property paid for by taxpayers, and the public should not be prohibited from using video cameras there.”

“Under our Constitution, the federal government has no power to bar photography on public sidewalks and in public plazas, and it is particularly troubling that Mr. Musumeci was detained while observing the arrest of a protester,” said Christopher Dunn, NYCLU associate legal director and lead counsel on the case. “Through this case, we expect to put an end to harassment of law-abiding photographers by federal officials.”

In addition to Dunn, New York University Civil Rights Clinic students Michael Schachter and David Wake are working on the case.