UPDATE: In response to popular request, we have prepared a PDF version of sections of this post for easy printing.

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We at the Citizen Media Law Project have taken great interest in the ongoing "Occupy Wall Street" protest in New York. Much of what we know about the protest has come from independent reporters and citizen journalists covering the story from the ground. Knowing this, we are alarmed to hear reports of police arresting reporters during the protest. This, of course, could greatly discourage press coverage of this story.

In order to encourage citizen reporting from the ground in New York, and to dispel the uncertainties as to the rights of those covering the protest, we have created this special question-and-answer guide regarding covering the protest in New York as a special addendum to our CMLP Legal Guide. For more general information, you can also refer to our guide's section on New York law.

Note: This guide specifically addresses the law as it pertains to New York City and the protests currently occurring in Zuccotti Park. The information provided below will not apply with respect to the other #occupy protests throughout the country. While we tried our best to present the law as it generally applies in New York, specific facts and circumstances often alter outcomes in specific cases. Also, this post provides the law as it exists in October of 2011. We do not intend to update this post as the law changes, so if you find yourself returning to this at a later time please note that the law may have changed.

Think of this as a starting point for further research. This is not a substitute for legal advice.

Questions

Q1: Do the protesters have a right to assemble in Zuccotti Park? On the sidewalks? In the streets?
Q2: Do I have a right to record police action at the protest? Do I have a right to record the protesters?
Q3: May the police record me?
Q4: May the police seize my camera and view its contents?
Q5: If the police tell me to do something, do I have to do it?
Q6: If the police ask for my identity, do I have to provide it?
Q7: Does reporting on the Occupy Wall Street event give me the right to enter into private property without permission? To obstruct police activity? To block the sidewalk? To shove a cop?
Q8: Who should I call if I am arrested?

Q. 1: Do the protesters have a right to assemble in Zuccotti Park? On the sidewalks? In the streets? [Back to top]

The protesters do have a right to gather on the public parks, streets, and sidewalks, but that right is subject to limits and doesn't apply clearly with respect to Zuccotti Park itself.

A patchwork of state and federal constitutional rights protect the right of the protesters to assemble and speak in public spaces in New York.¹  As such, the city and state governments have limited ability to restrict access to certain traditional forums for public expression, including the streets and sidewalks of New York City, and may not punish or restrict expressive activity occurring on the streets and sidewalks based upon its content.²

Notwithstanding these limitations, New York City imposes certain “content-neutral” requirements on protesters that have survived constitutional challenge. For example:

•  You need a permit from the city for any procession, parade, or race conducted on the street.³  You also need a permit for use of sound amplification devices in, on, or near any public street, park, or place.⁴  (In contrast, a protest conducted on a city sidewalk does not require a permit if no amplified sound is used and the protest does not include a parade.⁵)
• New York's anti-loitering law specifically prohibits the wearing of masks or facial disguises when in a public place with others also wearing such masks or disguises.⁶  Punishment under this law has been upheld in court even in circumstances where the mask has some limited expressive value.⁷
• New York State's Department of Health requires a permit for any gathering likely to attract over 5000 people and last for 24 hours or more.⁸  However, the state may not deny a permit except for specific enumerated reasons.⁹
• Of course, activity occurring on a public street will be subject to the rules of traffic,¹⁰  and there is little reason to believe that a claim of free speech will save a person accused of violating traffic laws.

One generally applicable law often used against protesters is New York's law prohibiting disorderly conduct.¹¹  This law forbids, among other things, the obstruction of vehicular or pedestrian traffic with the intent to create a public disruption, or in reckless disregard of a risk of public disruption. The law also allows the arrest of people in groups who refuse a lawful order from the police to disperse, if the group intends to create a public disruption by refusing or recklessly disregards the risk of disruption.

As broad as this law is, it has generally been upheld against constitutional challenge.¹² However, merely causing inconvenience generally does not arise to the level of public disruption.¹³  More importantly, congregations in public spaces that do not disrupt pedestrian or vehicle traffic, and do not threaten violence, are protected from prosecution by the First Amendment.¹⁴

Zuccotti Park presents a special issue, because the park is not owned by the city; rather, it is owned by Brookfield Properties. According to the Wall Street Journal, Brookfield has not authorized the gathering in the park, even though it has made the park available to the public generally.¹⁵  However, Mayor Bloomberg has indicated that the government does have some significant involvement with the operation of the park,¹⁶ and other demonstrators have applied to the NYPD for a permit to gather in Zuccotti Park.¹⁷ 

If Brookfield has allowed the government to meaningfully participate in the control of Zuccotti Park and accepted the delegation of traditionally public functions by operating the park in this way, a court might find that Brookfield is the government’s proxy with respect to the park.¹⁸  If so, Zuccotti Park would be likely be considered a public forum, and the speakers would have the same general protection as they do on public streets and sidewalks. If, however, a court decides that Brookfield is a private actor and the park is private property, Brookfield could lawfully eject the protesters by use of trespass law.¹⁹  This is a close question at best, and as such we cannot predict how a court would eventually rule.

Other, separate permitting rules also apply when gathering in the public parks controlled by the New York City Department of Parks and Recreation.²⁰  Zuccotti Park does not appear to be under such control.²¹

Q. 2: Do I have the right to record police action at the protest? Do I have a right to record the protesters? [Back to top]

Yes, so long as you do not violate other generally applicable laws in the process.  See Q. 7.  You have a right under the Fourth Amendment to the U.S. Constitution not to be arrested for recording the police or protesters unless the police have probable cause to believe that you have committed a crime. 

Some state wiretapping laws criminalize the electronic recording of oral statements or communications in public without permission; however, New York’s wiretap law²² only protects oral communications in which the participants in the communication have a reasonable expectation of privacy.  Thus, New York permits you to openly record conversations (including oral statements by protesters or the police) with the consent of a party to the conversation or if you are physically present at the conversation.²³   You might violate the law if you make a secret recording (for example, by leaving a recording device running and then leaving the area) or record someone talking on a cellular phone or other electronic communication device.

There is no law in New York that prohibits the publication of private facts about individuals, and so you cannot be sued in civil court for publishing such facts (although you could still be sued or arrested for trespassing, assault, or other torts or crimes committed in the course of gathering information; see Q.7).²⁴

You might also have a specific First Amendment right to record the activities of the police in public. This right has been recognized in jurisdictions outside of New York,²⁵ and would trump any state law that would otherwise prohibit such recording.  However, no New York court has ruled on the existence of this right.²⁶

Q. 3: May the police record me? [Back to top]

As part of their normal function to preserve the peace and investigate crime, the police are generally allowed to record activity occurring in public in which you have no legitimate expectation of privacy.  The police ordinarily may not record your activity on private property without either a warrant or the permission of the owner or tenants of the property, unless your activity is in plain view from a public location without the aid of electronic devices.²⁷

Although the police are entitled to record activity in public, they are not entitled to intimidate you from the exercise of your rights in the guise of recording you or conducting other law enforcement activity.²⁸  You should seek legal assistance if you believe that the police are using cameras as a tool for harassment or intimidation (for example, if an officer follows you closely with a camera without any reason to believe you are engaged in unlawful activity).

Q. 4: May the police search me?  May the police seize my camera and view its contents? [Back to top]

The police may ask you if they can search you or the contents of your camera.  Unless you are placed under arrest (which the police may not do unless they have probable cause to believe you have committed a crime), you are not required to agree to their requests; if you do agree, you will likely be found to have waived any objections to their search.

Absent your consent, the Fourth Amendment and Article I, § 12, of the New York State Constitution generally prohibit the police from stopping and frisking you at random unless the police have reason to believe that you may be carrying a weapon.  If they do have reason to suspect that you are armed, they may pat you down to determine the presence of a weapon, but without a warrant they may not ordinarily search your pockets, etc., once they determine that you are unarmed.²⁹

With respect to your camera, the Fourth Amendment and Article I, § 12, prohibit the police from seizing your property without first obtaining a search warrant (unless you are placed under arrest).  In addition, the federal Privacy Protection Act might prohibit the police from seizing your film or video recordings, with or without a warrant, except in certain specific circumstances.³⁰ A key exception to these rules is that the police may seize your recordings if:

1. they have probable cause to believe that the recordings constitute evidence of a crime (for example, if you have recorded others in the act of breaking the law), and
2. they have reason to believe that you would destroy the recordings if they leave the recordings in your possession until they can subpoena you to bring the recordings to a trial or obtain a warrant.

The police are not obliged to accept your statement that you will preserve the recordings, although it cannot hurt to tell them that.  It might also help to display press credentials if you have them, on the theory that members of the press are unlikely to delete their work product.

At least one New York case has held that if the police seize expressive materials without a warrant, they must promptly ask a judge to confirm that the seizure was proper in order to avoid violating your First Amendment rights.³¹  

The Fourth Amendment also generally prohibits the police from reviewing the content of your camera or other recording device (or the content of recorded media) without a warrant, even if the police lawfully seized those recordings without a warrant.³²   While you might lack an expectation of privacy in a recording made in a public place with the police present,³³  it is likely that a court would find that the police need a warrant to search your device for that recording and do not have a right to access other files (such as e-mail or call records on a smartphone, or unrelated photos and other recordings).³⁴ However, it is unclear in New York whether the police may search the contents of your recording device without a warrant if they seize your device after arresting you.

If it is important for you to be able to use the material that you record without delay, or if you are concerned that your recordings may be deleted or lost while in police custody, you should consider using a recording device or program that streams content to the Internet in real time. At the very least, you should regularly upload your recordings to another (preferably remote) device or service so that you have a copy available for your use.

Q. 5: If the police tell me to do something, do I have to do it? [Back to top]

As discussed above, if the police ask for your permission to search your person or belongings, you may refuse unless you are under arrest. The police may also ask you questions about your activities or for your identity, and in general you are free to refuse to answer.³⁵ However, see Q. 6, below.

If the police order you and all of the people around you to move from a location, it is generally advisable to follow police instruction. Under New York's disorderly conduct law, a person may violate the law if they congregate with others and ignore a police officer's lawful order to disperse.³⁶  The order has to be clear, and more than a mere advisory statement that a person's actions are likely unlawful.³⁷  The law does not extend to persons who are not part of the group that is creating a public disturbance and ignoring the order to disperse.³⁸  For that reason, if you are merely present at a gathering as a journalist and not as a participant, the police might allow you to remain if you explain the situation and show press credentials (if you have them).

While one cannot be lawfully punished for disobeying an order that is itself a violation of the constitution,³⁹ the exact constitutionality of a particular order to disperse is often a close call and unlikely to be resolved in the field.  If you think a particular police order is unlawful, it is wise to comply with the order while simultaneously documenting the order and your response. You may then consider seeking legal assistance.

Q. 6: If the police ask for my identity, do I have to provide it? [Back to top]

Several states, including New York, have adopted “stop and identify” laws. These laws allow an officer who has reasonable suspicion that a particular person has committed or is committing a crime to stop the person and demand the person provide his or her name, address, and explanation of their conduct. These laws have been upheld by the Supreme Court, at least where the officer has reasonable suspicion to believe the person has committed a crime.⁴⁰

New York's law allows an officer to stop a person reasonably suspected of a felony or certain misdemeanors and ask for the person's name, address, and an explanation of their behavior.⁴¹  The police do not need to give you Miranda warnings (i.e., “You have the right to remain silent,” etc.) before asking for this information.⁴²

Q. 7: Does reporting on the Occupy Wall Street event give me the right to enter into private property without permission? To obstruct police activity? To block the sidewalk? To shove a cop? [Back to top]

Generally, no. Reporting on an event does not give you the right to violate generally applicable laws, including laws prohibiting trespassing, violence to others, obstruction of justice, or disturbing the peace. 

Q. 8: Who should I call if I am arrested? [Back to top]

Josh Stearns has begun a list of organizations that have indicated that they will provide legal support to those arrested while covering the #Occupy protests. These organizations include:

• The Reporters Committee for Freedom of the Press: (800) 336-4243
• National Lawyers Guild: (212) 679-5100 
• Society for Professional Journalists, Legal Defense Fund: (317) 927-8000

For legal issues other than arrests, you may consider contacting our Online Media Legal Network. Our network is not designed to handle arrests directly, but may be able to assist with other issues you are facing while covering the protests.

Footnotes:

¹  See U.S. Const. Amend. I; N.Y. Const. Art. 1 §§ 8, 9.
² Ward v. Rock Against Racism, 491 U.S. 781 (1989).
³ N.Y.C. Code sec. 10-110(a). This law has withstood constitutional scrutiny. People v. James, 793 N.Y.S.2d 871 (N.Y.C. Crim. Ct. 2005); see Five Borough Bicycle Club v. City of New York, 684 F. Supp. 2d 423 (S.D.N.Y. 2010).
⁴ N.Y.C. Code sec. 10-108(d) (2010); see 38 R.C.N.Y. Sec. 8-01 et seq. This law has also survived constitutional scrutiny. Housing Works, Inc. v. Kerik, 283 F.3d 471 (2d Cir. 2002).
⁵ Metro. Council, Inc. v. Safir, 99 F. Supp. 2d 438 (S.D.N.Y. 2000).
⁶ N.Y. Penal L. § 240.35.
⁷ Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2d Cir. 2004).
⁸ 10  N.Y.C.R.R. § 7-4.1
⁹ Field Day, LLC v. County of Suffolk, 463 F.3d 167 (2d Cir. 2006).
¹⁰ 34 R.C.N.Y. § 4-01 et seq.
¹¹ N.Y. Penal L. § 240.20.
¹² See People v. Tichenor, 680 N.E.2d 606 (N.Y. 1997).
¹³ See generally People v. Jones, 878 N.E.2d 1016 (N.Y. 2007) (obstruction of sidewalk charge requires more than inconvenience); People v. Ferrara, 17 N.Y.S.2d 696 (N.Y. City Ct. N.Y.C. 1940) (picketing alone not disorderly conduct, but may be paired with violence, trespass, threats, or intimidation to constitute disorderly conduct); People v. Downer, 6 N.Y.S.2d 566 (N.Y. City Ct. N.Y.C. 1938) (leafleting alone not disorderly conduct).
¹⁴ People v. Losinger, 313 N.Y.S.2d 60 (N.Y. City Ct. Rochester 1970).
¹⁵ Adam Martin, More On Who Controls Zuccotti Park, The Atlantic Wire (Oct. 6, 2011),  http://www.theatlanticwire.com/national/2011/10/more-who-controls-zuccotti-park/43414/.
¹⁶ Ben Yakas, Bloomberg Implies Occupy Wall Street Protest's Days Are Numbered, Gothamist (Sept. 30, 2011), http://gothamist.com/2011/09/30/bloomberg_implies_wall_street_prote.php.
¹⁷ Julie Shapiro, Demonstrators Denied Permit for WTC Mosque Protest in Zuccotti Park, DNAinfo.com (May 27, 2010), http://www.dnainfo.com/20100527/manhattan/wtc-mosque-foes-making-carpool-travel-plans-for-dday-protest-at-zuccotti-park.
¹⁸ See Downs v. Town of Guilderland, 897 N.Y.S.2d 264 (N.Y. App. Div. 3d 2010).
¹⁹ See Latrieste Restaurant and Cabaret v. Village of Port Chester, 622 N.Y.S.2d 765 (N.Y. App. Div. 2d 1995).
²⁰ See 56 R.C.N.Y. § 1-01 et seq. These regulations have been upheld against constitutional challenge. See Nat’l Council of Arab Americans v. City of New York, 331 F. Supp. 2d 258 (S.D.N.Y. 2004).
²¹ N.Y.C. Dep’t Parks & Recreation, List of New York City Parks, http://www.nycgovparks.org/sub_your_park/park_list/full_park_list.html?boro=M (last visited Oct. 5, 2011) (omitting Zuccotti Park).
²² N.Y. Penal L. §§ 250.00, 250.05.
²³ See People v. Gibson, 246 N.E.2d 349 (N.Y. 1969); People v. Kirsh, 575 N.Y.S.2d 306 (N.Y. App. Div. 1st 1991).
²⁴ See Howell v. New York Post Co., 612 N.E.2d 699 (N.Y. 1993); Shiffman v. Empire Blue Cross, 681 N.Y.S.2d 511 (N.Y. App. Div. 1st 1998).
²⁵ See, e.g., Glik v. Cunniffe, --- F.3d ----, 2011 WL 3769092 (1st Cir. Aug. 26, 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).
²⁶ At least one federal court in New York has ruled that the taking of photographs for purely personal enjoyment is not protected by the First Amendment, but that court was careful to distinguish personal photography from photography or recording intended to be disseminated to the public.  Porat v. Lincoln Towers Community Ass’n, 2005 WL 646093 (S.D.N.Y. Mar. 21, 2005).
²⁷ See Kyllo v. United States, 533 U.S. 27 (2001).
²⁸ See Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986).
²⁹ See People v. Diaz, 612 N.E.2d 298 (N.Y. 1993).
³⁰ 42 U.S.C. § 2000aa(b).
³¹ See People v. Godek, 449 N.Y.S.2d 428 (N.Y. Sup. Ct. Suffolk Cty. 1982), citing Heller v. New York, 413 U.S. 483 (1973).
³² See United States v. David, 756 F. Supp. 1385 (D. Nev. 1991); United States v. Turk, 526 F.2d 654 (5th Cir. 1976).
³³ See, e.g., Berglund v. City of Maplewood, 173 F. Supp. 2d 935 (D. Minn. 2001).
³⁴ See Brown-Criscuolo v. Wolfe, 601 F. Supp. 2d 441 (D. Conn. 2009).
³⁵ Florida v. Royer, 460 U.S. 491 (1983).
³⁶ N.Y. Penal L. § 240.20.
³⁷ People v. Bezjak, 812 N.Y.S.2d 829 (N.Y. City Ct. N.Y.C. 2006).
³⁸ People v. Sharky, 293 N.Y.S.2d 262 (N.Y. Dist. Ct. Nassau Cty. 1968).
³⁹ Wright v. Georgia, 373 U.S. 284 (1963).
⁴⁰ Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177 (2004).
⁴¹ N.Y. Crim. Pro. L. § 140.50
⁴² People v. Walker, 701 N.Y.S.2d 166 (N.Y. App. Div. 2d 1999).
⁴³ Cohen v. Cowles Media Co., 501 U.S. 663 (1991).