New photo restrictions raise worry about freedom in New York

An axiom runs through our legal training as journalists: There’s little privacy in public.

The hypothetical scenario hasn’t changed in decades: If a couple does something illicit in their house. That’s private. If they do it on the street corner, that’s public. If they do it in front of the living room picture window for anyone to see from the street? Public. But if the activity requires a witness to crawl through the bushes to look in the window, that’s private.

However, bills winding their way through the state Legislature and on Gov. Andrew Cuomo’s desk would turn any number of public places — from the side of the road, to a parking lot, to a front door of a public building — to private places at the discretion of government officials.

The first bill, sponsored by Assembly Member Edward Braunstein (D-Queens) and Sen. Liz Krueger (D-Manhattan), might seem to have honorable intent. It would prohibit photos or video of someone receiving treatment in a medical facility.

Federal law already prohibits that, under the Health Insurance Portability and Accountability Act. This bill would extend that ban to anyplace treatment is provided, such as the side of the road where medics are treating the injured following a crash.

The latest federal guidelines created in a number of cases — including Onassis vs. Galella in 1973, Daily Times Democrat vs. Graham in 1962 and Neff vs. Time in 1976 — create standards that suggest images must be both highly offensive and of no legitimate news value before photographs can be prohibited. We wonder whether the state law could survive a constitutional challenge.

Privacy is important, we agree, but so is a free and unfettered ability to observe and report news in the public interest. Emergency workers providing aid to the public is inherently in the public interest. These people are doing their jobs — and we hope doing them well. It’s good that you should know that.

A second bill, proposed by Assembly Member Inez Dickens (D-New York) would make photographing anyone entering or leaving a reproductive health facility a crime. Again, the intent might seem noble — preventing people from using photography or video to shame someone seeking to use those services. (You might think abortion, but these facilities provide everything from family planning to birth control to basic gynecological care.)

However, the law would also ban video images of protests or the very harassment the law is intended to prevent. Again, the images are important to public understanding of what’s happening in the community. The law would leave people who might hinder access to such a clinic unfettered rein — so long as they don’t take pictures.

Following on the adoption of a state law banning the disclosure of the mugshots of people accused of crime, these bills create too many instances where police agencies get to decide what you know, when you know it and how, regardless of whether that information hinders a criminal investigation or discloses the identity of an undercover investigator — two very legitimate reasons to keep information from the public.

When the government has that much authority over what should be public knowledge, we edge far too close to that concept we call “a police state.” We urge Gov. Andrew Cuomo and state legislators to drop these efforts before more damage is done to your right to know.

Todd R. McAdam is managing editor of the Cortland Standard. This column is shared through the New York Press Association.

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