Picture This, and Risk Arrest
By JIM DWYER
Published: July 27, 2010

One afternoon, Duane P. Kerzic was arrested by the Amtrak police while
taking pictures of a train pulling into Pennsylvania Station. At first, the
police asked him to delete the images from his camera, but he refused. He
ended up handcuffed to the wall of a holding cell while an officer wrote a
ticket for trespassing.
Mr. Kerzic, a semiprofessional photographer, proceeded to describe his
detention on his Web site and included images of the summons. He also hired
a lawyer to sue.
In due course, Stephen Colbert of “The Colbert Report” arrived to sound the
gong. He turned the Kerzic story into a segment called “Nailed ’Em.” It
mocked Amtrak without mercy.
“Finally,” Mr. Colbert reported, “Kerzic cracked and revealed the reason he
was taking his terrifying photos.”
Mr. Kerzic appeared on the screen.
“The reason I was taking photos of trains is that every year Amtrak has a
contest; it’s called ‘Picture Our Train,’ ” he explained.
Soon after the show was broadcast, a strange thing happened. The section of
Mr. Kerzic’s Web site that dealt with Amtrak all but vanished. His lawsuit
was settled, and as a condition of the deal, he had to remove his writings
about the episode. Now his page on Amtrak — at duanek.name/Amtrak/ —
contains two words: “No Comment!”
Mr. Kerzic and his lawyer, Gerald Cohen, both said they couldn’t talk about
what had become of the Web pages describing the arrest and his commentary
about it. Carlos Miller, a photographer and blogger who followed the case,
reported that Mr. Kerzic received a “five-figure” settlement.
But how could Amtrak — the national railroad, whose preferred stock is owned
by the American public and whose chief executive and board of directors are
appointed by the president and confirmed by Congress — require that a Web
site criticizing the railroad be shut down as a condition of settling a
lawsuit for wrongful arrest?
What qualifications does Amtrak have to function as a censor?
“Our policy has been and continues to be that ‘Amtrak does not comment on
civil case settlements,’ ”Clifford Cole, an Amtrak spokesman, said in an
e-mail message. “We would not have any more to say on this matter.”
Since 9/11, a number of government bodies have sought to limit photography
in railroad stations and other public buildings. One rationale is that
pictures would help people planning acts of mayhem. It has been a largely
futile effort. On a practical level, decent cameras now come in every size
and shape, and controlling how people use them would require legions of
police officers. Moreover, taking photographs and displaying them is speech
protected by the First Amendment, no less than taking notes and writing them
up.
LAST year, a man named Robert Taylor was arrested on a nearly empty subway
platform in the Bronx, accused of illegally taking pictures. For good
measure, the officer threw in a disorderly conduct charge, on the grounds
that Mr. Taylor was blocking people’s movement, even though it was the
middle of the afternoon, the platform was about 10,000 square feet and there
was hardly anyone around. The charges were dismissed, and the city paid Mr.
Taylor $30,000 for his trouble. The city had already paid $31,501 to a
medical student who was arrested while he was shooting pictures of every
train station in the city.
After Mr. Taylor’s case, the New York Police Department reminded officers
that there was no ban on taking pictures in the subway system.
In November, Antonio Musumeci, a member of the Manhattan Libertarian Party,
was given a ticket while videotaping a political protest in the plaza
outside the federal courthouse in Lower Manhattan. Citing a federal
regulation that dates to 1957, agents of the Federal Protective Service gave
Mr. Musumeci a summons as he recorded a man who was handing pamphlets to
potential jurors. The New York Civil Liberties Union has filed a lawsuit on
Mr. Musumeci’s behalf, arguing that the rules that govern photography on
federal property were vague and unconstitutional. The lawsuit says people
routinely take pictures on the plaza after new citizens are sworn in at the
courthouse.
Since Mr. Kerzic’s run-in with the police at Penn Station, Amtrak has
dropped its Web page on the “Picture Our Trains” contest.
Mr. Colbert wasn’t standing for it.
“This photography contest,” he said, “is Amtrak’s cleverest ruse since their
so-called timetable.”
E-mail: dwyer@nytimes.com