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Can you take a photo on Metro? 1st Amendment questions are common, and complicated

Journalists at St. Louis Public Radio have recently been told they must not venture beyond the entrances to MetroLink train platforms with their cameras without approval or accompaniment by Metro Transit communications personnel.
Evie Hemphill
/
St. Louis Public Radio
Journalists at St. Louis Public Radio have recently been told they must not venture beyond the entrances to MetroLink train platforms with their cameras without approval or accompaniment by Metro Transit communications personnel.

On a recent Saturday, local high school teacher Tony Nipert deboarded a MetroLink train at the Central West End station while enjoying one of his favorite hobbies: exploring St. Louis. As he exited the train, he decided to snap a quick photo of the train departing toward downtown and pulled out his phone.

After taking a quick shot of the moving train, he decided to take one more photo — because the newly refurbished station was looking so good.

“I love how the buildings kind of rise up out of the station. So I got back at a distance, and at this point nobody’s on the platform,” recalled Nipert, who at the time was working on a piece for Next STL about how MetroLink is safer than many people think. “It’s kind of empty except for the two security guards. And I take a big landscape photo of it.”

About two seconds after he nailed his shot, Nipert told St. Louis on the Air, a security guard yelled at him.

“She said, ‘Who are you taking a photo of?’ And I said, ‘Oh, I’m taking it of the platform,’ and I gestured that I was trying to do that,” Nipert explained.

While Nipert shrugged off the interaction as no big deal (he quickly apologized and left), he added that he was surprised to learn Metro Transit wouldn’t want people taking photos of the transit system — which he thinks of as part of the public “commons.”

“I thought to myself [that] maybe they’ve got some rules about customer privacy or something and there’s a worry about something like that,” he said.

Lisa Hoppenjans is the director of the First Amendment clinic at Wash U’s School of Law.
Evie Hemphill
/
St. Louis Public Radio
Lisa Hoppenjans is the director of the First Amendment Clinic at Wash U’s School of Law.

In fact, Metro does list rules on its website for photography and video along the transit system. While the agency notes that such images “are fun ways to commemorate your trip on Metro,” it notes that such activities “may be limited for security, safety or customer convenience.”

The transit agency outlines separate rules for journalists and commercial photographers, saying that such people “must first contact the Metro Communications Department for approval.”

And it’s that distinction that raises concerns for Lisa Hoppenjans, assistant professor of practice and director of the First Amendment Clinic at Washington University School of Law.

“A policy that singles out journalists and treats them differently than sort of anyone else who could take a photo with the same type of equipment — with a cellphone camera like we all have — that is concerning,” she said. “Because under the law, the courts will look very skeptically at restrictions that vary based on the content of the speech.”

Photography is a form of expression, and as such falls under First Amendment rights enshrined in the U.S. Constitution.

“In particular, if you are in a public place, you generally have a right to take photographs of things that are plainly visible,” Hoppenjans said Tuesday on St. Louis on the Air. “So here, on the government-controlled Metro [platform], this is a public place — it sounds like what [Nipert] was photographing was clearly visible. And so as a general rule, the First Amendment would protect that.”

Even so, Hoppenjans acknowledges that such rights are not absolute — there can be “reasonable time, place and manner restrictions,” such as rules against tripods. “But simply having an individual take a few photos in a nonobtrusive, nonobstructive way, it certainly is questionable that [Nipert] was asked to stop that.” A journalist should have the same freedoms, she said.

Photos, public space and the 1st Amendment
Listen as host Sarah Fenske talks with Wash U's Lisa Hoppenjans — and as listeners as well as the head of Bi-State Development and the general counsel of the National Press Photographers Association share their perspectives.

Taulby Roach, president and CEO of Bi-State Development, which oversees Metro Transit, provided a statement to St. Louis on the Air on Tuesday morning, emphasizing that the agency’s photo and video rules “are designed to keep everyone safe.”

“We don’t want anyone to accidentally get knocked down or off of a MetroLink platform while trying to avoid a camera crew or trying to attract the attention of a reporter,” Roach’s statement read in part. He also noted that “security team members are trying to keep everyone safe and although they are trained about the photo and video rules, they do get confused on occasion, and for that we apologize.”

It’s not just governmental entities that sometimes try to tell would-be photographers what they can’t do in a public setting, noted Mickey Osterreicher, general counsel of the National Press Photographers Association. He said restricting access is a big issue for his members these days.

“We are dealing with this around the country all the time. … There are people now, unfortunately, that think that they have some reasonable expectation of privacy when they’re in a public place,” Osterreicher said. “And I can’t tell you how many times we hear from our members that people at demonstrations — when they’re out there protesting, where part of it is being seen and heard — they tell people, ‘You can’t take my picture.’”

Hoppenjans noted that while “someone does not need your consent to take your photograph" in a public place, there are restrictions on what you can do with a stranger’s photo. “You can’t go use it in an advertisement without their consent, for example,” she said.

“But if you’re using it in the context of news reporting or a similar type of use, that is generally going to be protected.”

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Kayla Drake. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Evie is a producer for "St. Louis on the Air" at St. Louis Public Radio.

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