A freelance photographer has been helping me out for a few months at the weekly paper I run. We don’t have money to pay him, so he gives us photos and then sells them on his website after we get first publication choices. The city is now telling him, rather harshly, that if he shoots anything on city grounds and then sells the photos, he has to pay a “vendor fee” every time he shoots a city event. I’ve explained to them that he’s shooting for us, but they’re being stubborn. I want to tell them that as long as it’s a public event on public property, we’re allowed to shoot it and sell the photos. Then I thought I’d double-check the law on that with you guys. Can they force us/him to pay that vendor fee every time? If not, where can I point them in regard to press freedoms?
No. People generally have a right under the First Amendment to take photographs in public places without interference from the government (see this handy guide for photographers created for the National Press Photographers Association in 2005).
This has often been challenged – recent controversies include the Long Beach (Calif.) police chief saying he could detain photographers who take photographs without artistic value and several cases in which citizens made audio or video recordings of police doing work in public places, thus violating state eavesdropping or obstruction laws. However, the fact remains that taking photographs in public places, whether for newsgathering or other reasons, cannot be punished under the First Amendment unless the state can prove an overriding interest.
The vendor fee presents a tricky issue, however, for two reasons.
First, the government can create reasonable time, place and manner restrictions on speech if it is applied regardless of the content of the speech. These include fees such as permit costs for security for a parade. However, the restriction must be serving an important state interest, and it must be no broader than necessary to serve that interest. In 1992, the Supreme Court disallowed permit fees charged for a civil rights march in Forsyth County, Georgia, because the fees were too broad and ultimately reflected on the content of the speech. Because photography is protected expression, a similar analysis would likely apply to vendor fees; unless the city could prove that they were no broader than necessary and protecting an important government interest, they would fail the Supreme Court’s “intermediate scrutiny” test.
Second, local governments in Texas are limited in the kinds of fees they can charge and collect. These must be specifically outlined and authorized by statute. While some form of vendor fees may be permissible, the sort at issue here are dubious at best.