united states project

What law did the Toledo Blade break? The Army won’t say

But we've got a guess--and the paper's lawsuit could present the first challenge to the statute
April 16, 2014

After military police detained two journalists last month outside a military manufacturing plant, an Army spokesman said the journalists had violated “Federal law and Army Regulations” by photographing the facility.

But which law, and which regulations? The Army didn’t say at the time–and it won’t say now.

We have a pretty good idea, though, of one federal law the government is likely to cite when it responds to a lawsuit filed by The Blade of Toledo, OH. And if the case goes to trial, it could present the first constitutional challenge to a statute that’s been on the books since the World War II era.

All of this stems from a March 28 incident at the Joint Systems Manufacturing Center (JSMC) in Lima, OH, where Blade photographer Jetta Fraser reportedly took photos of the center while standing in a small roadway between the public street and the guard hut at the facility’s entrance. When she tried to leave, with Blade reporter Tyrel Linkhorn, military police detained and questioned them–and confiscated their cameras and deleted digital photos, according to a report in The Blade. Notably, the journalists have not been charged with trespassing.

The newspaper filed a federal lawsuit April 4 against various government officials alleging, among other things, that military police had interfered with the journalists’ lawful exercise of their First Amendment rights. Before and after the lawsuit was filed, Don Jarosz, deputy public affairs officer for the Army’s TACOM Life Cycle Management Command, released a statement asserting the journalists had “taken unauthorized photographs of the installation” from “within the boundaries” of the facility and noting:

JSMC Lima is a restricted Department of Defense Government-owned, Contractor-operated facility that fabricates and assembles armored combat vehicles and equipment for U.S. and Foreign Military customers. According to Federal law and Army Regulations, it is unlawful to take any photograph without first obtaining permission of the commanding officer. Signage to this effect is visible and warns that any such material found in the possession of unauthorized personnel will be confiscated.

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In response to inquiries from CJR, Jarosz refused last week to say which “Federal law and Army Regulations” were applicable, adding that it is “standard Army policy not to comment on any pending litigation.” Never mind that I did not ask Jarosz to comment on pending litigation–he was asked to clarify a reference in the statement he released both before and after the lawsuit was filed.

But while it remains unclear which “Army Regulations” are at issue, a close reading of the statement, informed by discussions with half a dozen legal scholars, revealed that one federal law is very likely to be used by the government in its response to The Blade’s lawsuit: 18 U.S.C. § 795, titled “Photographing and sketching defense installations.” It states:

Whenever, in the interests of national defense, the President defines certain vital military and naval installations or equipment as requiring protection against the general dissemination of information relative thereto, it shall be unlawful to make any photograph, sketch, picture, drawing, map, or graphical representation of such vital military and naval installations or equipment without first obtaining permission of the commanding officer of the military or naval post, camp, or station, or naval vessels, military and naval aircraft, and any separate military or naval command concerned, or higher authority, and promptly submitting the product obtained to such commanding officer or higher authority for censorship or such other action as he may deem necessary.

Penalties include a fine and up to one year in prison.

The government could use that statute to argue that military police had good reason to detain the Blade journalists, on the theory that Fraser, “without first obtaining permission of the commanding officer,” unlawfully photographed a “military installation” defined by the president as “vital” and “requiring protection against the general dissemination of information relative thereto.” Embedded in the government’s argument would be Executive Order 10104, issued in 1950 to define the military installations requiring protection. It includes those that are designated as “restricted,” and Jarosz’s statement calls JSMC, which manufactures combat vehicles and defense systems, “a restricted Department of Defense Government-owned, Contractor-operated facility” (emphasis added).

There is surprisingly little case law on § 795–I wasn’t aware of it until a colleague pointed it out, and I study this stuff for a living. Going back more than 60 years, I found only 11 cases citing the statute, and no challenges to its constitutionality. The case closest factually to the Blade’s appears to be the most recent–Genovese v. Town of Southhampton, decided in 2013 by the US District Court for the Eastern District of New York. A woman stopped her car on a public road to photograph a restored helicopter on the grounds of an airport, half of which is an Air Force base. She took the photos from the airport’s fence line, shooting what was visible from the road. The woman was detained and later filed a lawsuit alleging, among other things, that she was unlawfully detained.

The court dismissed all of her claims for various reasons, and found that the police had probable cause to detain the woman for violating § 795 by photographing a “vital military installation.” Remarkably, her attorneys didn’t challenge the statute, and in fact they wrote in a letter to the court: “[T]here is nothing to oppose the applicability of 18 U.S.C. § 795 in this matter.” It’s worth mentioning that the case is distinguishable from The Blade’s in at least one major way: The woman had a semiautomatic assault rifle in a gun case in plain view in the front passenger seat of her car, a fact that certainly would make her less sympathetic to the court in the context of an unlawful detainment claim.

So, if the government does cite § 795, what would that mean for The Blade’s lawsuit? Even if a court agreed that the statute gave military police good reason to detain Fraser and Linkhorn, the law likely would not provide a complete defense to all of the newspaper’s claims–10 in total arising from the First, Fourth, and Fifth Amendments, as well as the Privacy Protection Act. That law, passed in 1980, generally makes it “unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize” work product and documentary materials “possessed by a person in connection with a purpose to disseminate to the public a newspaper … or other similar form of public communication.” (Remember, the guards didn’t just detain the journalists; they also allegedly deleted Fraser’s photos.)

Further, § 795 is susceptible to a facial challenge–i.e., a claim that the statute is unconstitutional on its face, that it always operates unconstitutionally. The law “seems overly broad because it doesn’t distinguish military secrets and what is plainly visible to the public,” said Cindy Gierhart, a legal fellow at the Reporters Committee for Freedom of the Press. “The US military has very good reasons for keeping certain information regarding its equipment, weapons, and operations secret, but making it a crime to photograph the outside of a building that is plainly marked as a government facility, is viewable to any passerby or on Google Street View, and doesn’t betray any military secrets doesn’t serve any purpose.”

Indeed, it’s true that the government controls access to its military installations, commanding officers enjoy discretion in the discharge of their duties, and neither military installations nor battlefields are public forums–but if a statute is so broadly written that it deters free expression, it can be struck down on its face because of its chilling effect, even if the statute prohibits acts that legitimately may be prohibited. Moreover, when the government wants to advance an interest (e.g., protecting sensitive military installations) and it has available a variety of effective means, it must choose the one that least interferes with expressive rights.

To spell out the logic of Gierhart’s comments a bit further, then: If a law fails to distinguish what can be seen readily from a public street and a space so “vital” it “requir[es] protection against the general dissemination of information relative thereto,” the law stands to interfere with the general right, under the First Amendment and state common law, to observe, record, and publish what easily can be seen or heard in public. The ruling in Genovese, the 2013 case, didn’t acknowledge that issue–but, again, the attorneys didn’t “oppose the applicability” of § 795. The Blade’s lawsuit could become the first challenge to the statute.

Assuming, again, that the government cites § 795 when it decides it’s ready to identify the “Federal law and Army Regulations” in question. In any case, we’ll be watching how this unfolds.

Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.