Since the Sept. 11 terrorist attacks, photographers of railroad and transit facilities have been experiencing problems ranging form mere suspicion to outright declarations that such photography is “illegal.” In a few instances, police or transit employees have attempted to confiscate film and cameras, which they generally have no right to do.

Do photographers have any recourse in such situations? Yes. The general rule is that people have the right to photograph whatever they please from areas that are open to the public. Indeed, the U.S. Supreme Court has recognized photography as a right of free expression protected by the First Amendment. Moreover, those who submit photos for publication in news media enjoy the somewhat stronger rights of freedom of the press. [Though after taking some legal course in Mass Media Law, the Bill of Rights only protect the actual printers and the production of the media – the ways that you can collect that information is a different story. Though this is very hard to fully explain in a few pages – it took our class a full semester to explain. —TPNet]

Banning Photography?
Some organizations, such as New Jersey Transit and the Massachusetts Bay Transportation Authority, have attempted to implement unwritten rules against photography. It is possible for a transit agency to ban photography at it s public area. However, to be constitutional this rule must regulate the time, place, or manner of expression (photography) by narrowly tailored to serve a significant governmental interest, and leave open ample alternate channels of communication. The Supreme Court had held that a restriction on public expression must not substantially burden more speech that is necessary to further the government’s legitimate interest. Thus a blanket ban on photography is overkill and would not be upheld absent a compelling demonstration that public safety would be enhanced. The burden of providing such enhancement would be on the transit agency.

Efforts to ban photography failed
The New York City Transit Authority and, later, NJ Transit proposed adopting regulations to ban photography at their respective location. Both agencies followed the legal procedures that provide for public comment. Both received a flood of comments, as well as legal briefs on the constitutional issues. Wisely, both agencies withdrew their photo ban proposals. The Nation Railway Historical Society has taken an active role in education transit agencies as to the lack of justification for a ban. It has been successful in obtaining written acknowledgement from many agencies that no bans are in effect, as well as the removal of “Photography Prohibited” signs from some facilities.

Why the mistrust?
There is no federal law prohibiting railroad or transit photography. Likewise, research has not turned up any state law on the subject in existence anywhere. Why, then, is there so much confusion over the matter? First, some people have always resented photographers and now use 9/11 as an excuse to justify their positions.

Next, many transit agencies have developed public and employee education programs that identify photography as a suspicious activity. Unfortunately, some of the training materials prepared by the National Transit Institute, a private organization affiliated with Rutgers University in New Brunswick, N.J., depict a person photographing a train with the connotation that it is illegal or at least suspicious. Other literature from this federally granted organization lists people who are “taking photos of equipment” as suspicious.

Furthermore, the training materials do not explain that although photography may raise suspicion, it is legal and protected by the Constitution. Chris Kozup from NTI said a new training program is being prepared for the railroad industry that will include a discussion of the railfan hobby to clarify it for those who aren’t familiar.

What can you do?
Unfortunately, efforts to enforce non-existing laws or rules continue. When challenged by a transit employee or police officer, the best approach is to politely ask to see a copy of the statute or rule. Such general responses as, “Haven’t you ever heard of 9/11?” are good indications that the person is acting under the misapprehension that photography is wrong. If the person refuses to back down, take down the name, rank, badge number, and other information, and file a complaint with the transit agency or police department. Experience indicates that those complaints generally have received letter of apology with a promise that the officer or employee will be retrained. If the officer, employee, or transit management continues to insist there is a photo ban, you can seek advice from an attorney in the state where the incident occurred or from the American Civil Liberties Union. The ACLU took and active role in opposing the New York City and NJ Transit photo ban proposals and is threatening to sue Boston’s MBTA over its unwritten ban.

However, railfans should bear in mind that although it’s rare, under the proper circumstances, there can be a lawful ban on photography. If you are not sure, it’s best to take down the details and investigate later. Also remember that police officers may ask what you are doing, especially when a civilian has reported a “suspicious” act, or a potential target such as a bridge or oil refinery is in the background. A polite explanation about the hobby and the fact that you are in a public area should end the matter.

Finally, in most situations there is no legal basis for confiscating a camera or film. Anyone doing that could be liable to the photographer for damages pursuant to state law. In most cases where this has happened, the agency has returned the stolen items with an apology or the return has been ordered by a court. Railfans have the legal and constitutional right to photograph whatever they please from locations pen to the public. So, get out there and take your pictures!

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