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Say what now? York County solicitor 'believes' this trumps First Amendment

Liz Evans Scolforo
York Dispatch

York County Prison's policy of prohibiting people from photographing or filming the facility from the public sidewalk has been reviewed and upheld by the prison's solicitor, according to the county's spokesman.

"In this case, the First Amendment doesn't trump security and safety of a facility, our solicitor believes," spokesman Mark Walters told The York Dispatch on Tuesday, Feb. 4.

"Because of the security and safety of the facility being paramount ... certain policies prohibit the free use of photography," Walters said.

The ACLU of Pennsylvania maintains any member of the public can take photos and film while standing on public property and be protected by the First Amendment to the U.S. Constitution.

The issue was reviewed by prison solicitor Donald Reihart after an East Prospect-area man, 58-year-old Tom Shirey, was approached Jan. 22 by a prison official who told him to stop filming the prison from the public sidewalk.

Attorney Donald Reihart at his office in Springettsbury Township, Tuesday, Jan. 17, 2017. Dawn J. Sagert photo

Shirey, a retired firefighter and EMT, considers himself a First Amendment activist who films county and private buildings from public property, then posts his videos on YouTube under the name First Capital Transparency.

"If you don't use your rights, you tend to lose them," he said.

The York Dispatch on Jan. 24 reported about Shirey being told to stop filming. A lieutenant approached Shirey and respectfully told him to stop filming, then walked back into the prison without forcing Shirey to stop filming.

Reihart concluded schools are an example of where "there can be restrictions" on filming from public property, for safety reasons, Walters said.

Reihart maintains that allowing people to take photos of the prison could highlight vulnerabilities at the facility, according to Walters.

"While it's a public sidewalk, it falls under the distinction of being right in front of a secure facility," the spokesman said.

Tom Shirey, 58 of East Prospect, was conducting a "first amendment audit" at the York County Prison recently when he was approached by a prison official telling him he couldn't film the facility from a public sidewalk.
Sunday, January 26, 2020.
John A. Pavoncello photo

Let a judge decide? Vic Walczak, legal director of the American Civil Liberties Union of Pennsylvania, on Tuesday said he's not going to quibble with Reihart's determination.

"The next time we get a complaint, we'll be happy to ask a federal judge to resolve the disagreement," he said. "That kind of lawsuit comes with requests for attorneys' fees."

The U.S. Congress long ago included fee-shaping in civil cases to deter unconstitutional conduct and to help people defend their civil rights, according to Walczak.

"It's not cheap to hire a lawyer to file a lawsuit," he said, adding, "We tend not to take cases we think we're going to lose."

A satellite view of York County Prison.

Walczak told The York Dispatch Jan. 24 that any member of the public has the right to film from a public sidewalk.

"That's what's called, under the First Amendment, a 'traditional public forum,' and it's the kind of government property that's most protected for free-speech activities," he said. "We've sued over that right in Pittsburgh and won."

Walczak said the prison has the right to restrict any kind of recording on prison property, but that does not include the public sidewalk.

"If the guy wants to stand there and record, he's got the right to do that," Walczak said of Shirey.

'We see this all the time': Mickey Osterreicher, general counsel for the National Press Photographers Association, said the issue of authorities trying to prevent the public from taking photos or video in public places has been ongoing for many years.

"I spend a great deal of time training police on First Amendment issues so journalists and citizens don't get interfered with or arrested — and so police agencies don't get sued for violating citizens' First Amendment rights," he said. "We see this all the time."

Walters has said that the normal policy for filming in front of the prison is for media to contact him so he can grant access beforehand.

More:York County Prison workers confront First Amendment activist recording on public property (VIDEO)

York County Prison

He said it's the first time a private citizen contacted him about filming the prison. Shirey called Walters after being given the spokesman's name by the prison lieutenant.

"This was a unique circumstance that has required the county to review policies and procedures and consider what can and can't be done," Walters said  Jan. 24.

'It's a shame': Told on Tuesday about the prison solicitor's decision, Shirey said he hopes prison officials reconsider down the road.

Tom Shirey, 58 of East Prospect, was conducting a "first amendment audit" at the York County Prison recently when he was approached by a prison official telling him he couldn't film the facility from a public sidewalk.
Sunday, January 26, 2020.
John A. Pavoncello photo

"It's a shame that the prison feels that way," he said. "I can understand where they are coming from — safety. But their feelings don't trump our rights. ... You and I both know that the First Amendment is the law of the land."

Shirey said he suspects it comes down to ego.

"They don't want to apologize. It's their way or no way," he said, and asked, "if it's such an issue, how come they have a public bus stop right there?"

Shirey said he'll continue conducting unannounced First Amendment audits and agreed that more revealing photographs can be found by anyone searching Google Earth for "York County Prison."

"This is what our forefathers fought for — our freedoms, our rights," he said. "And I think they're just being stripped away."

— Reach senior crime reporter Liz Evans Scolforo at levans@yorkdispatch.com or on Twitter at @LizScolforoYD.