(CN) – A case touching on the freedom of the press to report at southern border ports crossed into the Ninth Circuit on Friday, as civil rights advocates argued border officials have placed unconstitutional burdens on photographers and videographers.
At a Friday hearing at the Richard H. Chambers Courthouse in Pasadena, ACLU of San Diego’s attorney Mitra Ebadolahi asked the appeals court to rule that a U.S. Customs and Border Protection (CBP) policy that prohibits photographs at border ports without permission violates the First Amendment.
Ebadolahi is representing environmental activist Ray Askins, who in 2012 was photographing idling vehicles at the Calexico port of entry into Mexico when border agents took his camera and deleted the photos.
Askins’ co-plaintiff in the lawsuit is civil rights advocate Christian Ramirez, who had a similar experience after photographing border agents frisking female travelers. The men claim that border agents are violating their First Amendment right to document issues of public interest.
The Los Angeles Times and San Diego Union-Tribune backed the plaintiffs arguing in court papers that CBP’s policies could curtail reporting on immigration, drug trafficking, the environment and other border stories.
In March 2016, U.S. District Judge Thomas Whelan sided with the government that the policy helps protect the privacy of travelers and border security. Doing away with the rule could undermine the fight against human smuggling and drug trafficking, the San Diego judge said.
“A CBP policy that did not restrict photography on ports of entry would allow comprehensive, long-term documentation of port procedures. Such intimate familiarity with CBP patterns would be invaluable to drug cartels and smugglers seeking to violate the borders of the United States,” Whelan wrote in the 7-page order.
During arguments on appeal, Ebadolahi said the ACLU was not disputing that the government has an interest in border security and the plaintiffs knew they could not take unauthorized photos over border agents’ shoulders, or snap pictures of other sensitive material like computer screens or interview rooms.
“This is not about the right to enter into restricted areas and take whatever photographs you want,” Ebadolahi said. “Everything that we’re talking about is visible out of doors.”
The government needs to do more to justify the limits on photography at the border, Ebadolahi said.
“Speech restrictions are supposed to be the last resort, not the first resort,” Ebadolahi said.
The government’s attorney Thomas Pulham said Whelan’s findings were consistent with other First Amendment rulings in “sensitive” government facilities and buildings.
“Even when you have a right to be someplace there is not necessarily a First Amendment right to take pictures,” Pulham told the court.
At least two of the three judges seemed inclined to send the case back to the trial court to determine if the areas in question were marked as restricted or instead unrestricted public areas.
Clinton appointee Judge Marsha Berzon noted the public usually has a First Amendment right to take photos. The ACLU had said when Askins took the photos, he was outside the port of entry, on U.S. soil and standing on a public street.
“There’s a myriad of cases saying that in the context of watching the police or watching government officials if you can otherwise be there and watch them, you can take pictures of them,” Berzon said.
Circuit Judge Jay Bybee, a George W. Bush appointee, said the government would be on solid ground if it were clear to the public that the areas they were taking photographs in were controlled and restricted.
Pulham argued the policy is no different than restrictions in courtrooms, town halls, nuclear sites, and other sensitive areas.
“My goodness, that sure seems far afield from somebody standing right near a park on a public street,” Bybee said.
The court took the case under submission and did not indicate when it will rule.
In 2012, Askins was taking photographs for a report on traffic gridlock at the border when border agents threatened to smash his digital camera. After he was handcuffed, frisked and released he says only one image on the camera remained. The rest were deleted.
Ramirez, a human rights director with San Diego Alliance, says he took photos on his cellphone at the San Ysidro port of entry in 2010, of border agents frisking women.
The lawsuit cites another case where border agents forced people who had footage of the killing of Anastasio Hernandez Rojas by CBP officers at the San Ysidro port of entry on May 28, 2010, to erase their footage.
ACLU’s argument follows the Ninth Circuit’s ruling on Tuesday in favor of people monitoring border patrols at a checkpoint in rural Arizona. A federal judge in Arizona sided with the border patrol, but the Ninth Circuit remanded the case after the plaintiffs argued they have a First Amendment right to take photos and record law enforcement at a busy checkpoint.
U.S. District Judge Sharon Gleason, sitting by designation from the District of Alaska, joined Berzon and Bybee on the panel.