Court Upholds Ban on Photographing Border Checkpoint

Lower courts have recently been holding that the First Amendment protects people’s right to audiorecord and videorecord in many public places, especially when they are recording the conduct of government officials. (See, e.g., ACLU v. Alvarez (7th Cir. 2012) and Glik v. Cunniffe (1st Cir. 2011).) This makes a good deal of sense; just as restricting the spending of money for speech interferes with the ability to speak, and is thus presumptively unconstitutional, so restricting audiorecording and videorecording events in public interferes with the ability to effectively and persuasively speak about those events.

At the same time, this opens up a bunch of questions about what limits, if any, there are on this right. (For instance, many states have laws barring one party to a conversation from secretly recording that conversation, at least in many circumstances, yet that too burdens people’s ability to gather information.) Here is one court decision from a few days ago, Askins v. U.S. Dept. of Homeland Sec. (S.D. Cal. Sept. 20, 2003), upholding such a limitation. I’m not sure what the right analysis is here, but I thought the court’s discussion was worth passing along:

According to the Complaint, Mr. Askins is a U.S. citizen living primarily in Mexicali, Mexico who frequently crosses the border into the United States. He maintains and contributes to a blog that addresses environmental issues and human rights abuses in the U.S.-Mexico border region. Mr. Askins’ work “involves extensive research, investigation, and analysis of CBP activities.” …

On or about April 19, 2012, Mr. Askins took “three or four photographs of the exit of the secondary inspection area” while standing approximately “50–100 feet from the exit from the secondary inspection area.” When he took these pictures, he was in the United States and “not engaged in the act of crossing the border.” After Mr. Askins took the pictures, CBP officers demanded Mr. Askins delete the photos. Mr. Askins refused, and the officers stated they would “smash the camera if Mr. Askins did not delete the photos.” He again declined, explaining that the photos were his property. At that point, the officers handcuffed Mr. Askins and took his camera, passport, car keys, and hat.

Mr. Askins was forcefully [led] into a small room inside the secondary inspection area and told to sit down. He was not free to leave. He was next [led] to a separate room where he was “subjected … to an invasive and embarrassing physical search.” After the search, the officers told Mr. Askins he was free to go and returned his belongings. Upon inspection of his phone, he realized that three of the four pictures he had taken of the port of entry had been deleted….

Plaintiffs have adequately plead that they were exercising their First Amendment rights in public fora….

[A]s admitted by Defendants, “the decision to authorize photography shall be made “ ‘without favoritism … while not compromising the DHS/CBP mission.’” (citing CBP Directive 3). Such a rule is necessarily content-based because authorization depends on whether or not the CBP believes the content of the photography compromises the DHS/CBP mission. Thus, CBP’s photography policy is subject to strict scrutiny….

Defendants explain that their policy advances their “interests in preserving the integrity of its sensitive border search techniques, law enforcement operations, and criminal investigations.” Defendants’ asserted interest in regulating photography at the border serves perhaps the most compelling government interest: protecting the territorial integrity of the United States….

Plaintiffs … argue that the policy is not “the least restrictive means to further the articulated interest” because the CBP can serve these same interests by prohibiting photography of matters not exposed to public view. Specifically, Plaintiffs suggest the policy is “overinclusive” as it extends to photography of matters exposed to public view, which do not implicate CBP interests. However, Plaintiffs fail to account for the fact that a policy that prohibited photography of “matters exposed to public view” would not fully address the government’s interest in protecting its borders. Specifically, many issues of border security “exposed to public view,” such as the identity of CBP officers and search techniques, would be unprotected under such a rule. Moreover, a policy that restricted photography to “matters not exposed to public view” would be impractical, if not impossible to enforce, because border patrol agents could not determine who was and who was not complying with such a rule. Indeed, any photography policy that hinges on whether or not the subject of the photo is exposed to public view would still require CBP to authorize the photography.

Plaintiffs also maintain the policy is “underinclusive” as it fails to prevent photography of the same matters from outside port of entry property. However, “[p]hotography from off of port entry property does not pose the same threat to government interests as photography” on port property. This is because CBP can erect barriers and position its operations to shield sensitive techniques from off port property, but the same is not true for those on port of entry property.

Moreover, Plaintiffs apparent concern that Defendants have unbridled discretion to prohibit photography is unfounded. Because CBP officials may not grant requests that compromise the Department of Homeland Security “mission,” CBP’s priority mission of securing the United States from terrorists and terrorist weapons and facilitating lawful international trade is a significant bar to unbridled discretion. Furthermore, CBP is precluded from using favoritism when deciding whether or not to grant requests. Therefore, CBP’s legal directive provides sufficient safeguard against officer discretion. Moreover, Plaintiffs have not alleged that either of them requested authorization and were subsequently denied the same due to improper officer discretion.

For the foregoing reasons, the Court finds that CBP’s photography policy survives the strict scrutiny analysis due to the extremely compelling interest of border security and the fact that the Court finds the current policy to be the least restrictive alternative available to Defendants. Therefore, Defendants motion to dismiss with respect to the constitutionality of the CBP photography policy is GRANTED with LEAVE TO AMEND.

The court does hold that plaintiffs’ Fourth Amendment claim for the seizure of the photographs can nonetheless go forward, though the court’s reasoning on that is not clear to me. (“Defendants move to dismiss Plaintiffs’ Fourth Amendment claims by arguing that ‘because the restriction of unauthorized photography on land ports of entry is constitutional, the seizure and search of individuals who violate that restriction is also constitutional.’ Thus, Defendants base their entire argument on the premise that their photography policy is constitutional. However, as explained in detail above, the Plaintiffs have not shown that their policy is constitutional.”)

But the broader point, I think, is that the court has concluded that even a content-based ban on photographing border checkpoints from a sidewalk outside the checkpoint would be constitutional, because it passes strict scrutiny.

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