News-Gatherer not Nightcrawler: District Court Denies NYPD’s Motion to Dismiss Photojournalist’s First Amendment Complaint

The U.S.  District Court in Manhattan recently allowed a photojournalist’s complaint against the New York Police Department (NYPD) and City of New York to go forward.  In Jason B. Nicholas v. The City of New York, 15-CV-9592, the photojournalist-plaintiff alleged that the NYPD’s and City’s revocation of his press credentials violated his First Amendment and Fourteenth Amendment rights.

Nicholas recounted a series of encounters with the NYPD that led to the revocation, including an altercation with a retired NYPD detective while on assignment for the New York Daily News.  On multiple occasions, Nicholas refused to stay in an NYPD-imposed “press pen,” resulting in his press credentials being seized.  In the most recent incident, while photographing a rescued worker being loaded into an ambulance on-scene at a building collapse in Manhattan, Nicholas’s credentials were seized and revoked by the NYPD for allegedly not being in the press pen near the scene, although he alleges that other photographers were outside of the press pen and operating unimpeded.  The credentials were not returned until nearly eight months later.

Refusing to dismiss Nicholas’s complaint, the Court held that he had stated a viable claim for violation of his First Amendment rights.  The Court reiterated that “under the First Amendment, press organizations have a . . . right of access to newsworthy events in their capacity as representatives of the public and on their own behalf as members of the press.” The Court observed that “[e]qual press access is critical” to news-gatherers, citing case law extending protections against content-based or arbitrary exclusions.

The Court also allowed Nicholas’s due process claim, finding he had sufficiently alleged facts to show he had a protected interest in his press credentials; he was deprived process for revocation of his protected interest by the NYPD’s establishment of a “frozen zone” post-exigency; he was injured as a result of an official policy, custom, or practice of the municipality; and he was in danger of future harm, as evidenced by the pattern of multiple revocations of his press credentials by the NYPD.

Commentators and scholars have pointed to this recent decision, as well as decisions dating back decades upholding First Amendment claims by journalists excluded from covering public officials, including a case from the District of Columbia Circuit that found it impermissible to exclude White House press passes in a content-based or arbitrary fashion.

For more information, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.

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