The Tully Center for Free Speech

Free Speech Zone

The Photo Controversy and the First Amendment

By Roy Gutterman, December 12, 2012

The independence of the American press is again being called into question thanks to the gripping photograph published on the front page of The New York Post  last week. The dramatic image of a man clinging to a New York City subway platform, struggling to lift himself from the tracks and the inevitable path of an oncoming subway train, is spurring an international debate about both journalistic ethics and just plain old ethics.

The photographer, Umar Abbasi, found himself in a one-in-a-million situation, one most often left for academics and ethicists to discuss and deliberate in books and classrooms.  Abbasi, a freelancer, had seconds to decide whether to attempt to save this seemingly helpless man or perform his journalistic duty and document the event.

Photographers, particularly those in war zones and disaster areas, sometimes find themselves facing this conundrum.  For people outside of the journalism profession, inaction by a journalist is not only anathema but also difficult to grasp.  Even journalists wrestle with it.

It raises the question:  is a journalist a journalist first or a human being first? This is not always an easy question to answer.

In the United States, most citizens do not really have a legal duty to lend a hand or save someone from impending harm.    In most cases, a citizen would only have a legal obligation to save the life of another in pretty narrow settings – as lifeguards, babysitters, doctors, parents, homeowners.  This liability question is a ripe topic for law school tort classes. But the law and ethics are sometimes two different things.

The photographer in this case, immune from liability for not saving someone’s life in a situation like this, is still the subject of criticism, scorn and contempt. But for many journalists, that is nothing new. And his split-second decision to photograph that moment rather than try to save a life in a strange way reinforces an important free press value:  independence.

Yes, there is value in journalistic independence.

That journalistic independence has backing under the First Amendment.  In one case, Branzburg v. Hayes (1972), Justice Potter Stewart wrote of his concern that certain laws or government actions could be seen as a way to “annex” the press into an investigatory arm of government.

While that case dealt with reporters’ privilege, confidential sources and federal grand jury subpoenas, its discussion in the majority and minority opinions reiterates an important statement about the role, value and protection that must be afforded an independent press under the First Amendment.

The constitutional independence of the press – whether it is the highbrow or lowbrow – is important in informing the public without binds or influence by the government.  This is a core function of the First Amendment.

The New York Post’s front page photograph certainly tells a story. The value of that story may still be an open question. But this photo is also spurring discussions not only about journalistic ethics but also about the plight of urban homeless, the mentally ill or even the other commuters on that subway platform who observed the confrontation and tragedy, and also did nothing.  In times of turmoil, the press is an obvious punching bag.

Photographers hold a unique position on journalism’s front lines.  They put themselves in harm’s way to get the shot.  News photographers thrust themselves into the scrum of a riot or the heart of a storm or a battlefield.  Photographers routinely find themselves in dangerous situations, sometimes even getting harmed themselves.  Writers can report from anywhere, but it is the news photographer who is right in the middle of things, which sometimes requires that split-second decision-making.

Where would news and history be without these photographers? Some of modern history’s most iconic images required this sort of ethical decision making by a news photographer – whether it was images from the Vietnam War or a starving child in Africa with vultures circling. The photographer must act with complete independence to tell that story. That is what independence means under the First Amendment.


Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.