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In the last two weeks, a ski photographer was fired in Vail, Colo., for publishing a photo the resort deemed embarrassing, and a popular blogger in Jackson Hole was dismissed from Teton County Search and Rescue for posting photos of avalanche damage at Jackson Hole Mountain Resort.

Both cases raise questions of free speech and freedom of the press, as protected under the First Amendment.

Perturbed by these incidents, I decided to contact the American Civil Liberties Union of Wyoming and an attorney specializing in media law to determine our rights in an age where anyone wielding a camera phone can be a citizen journalist.

The verdict is mixed. Bloggers have many of the same rights as the traditional press, I was surprised to learn, but in cases where free speech pits workers against their bosses, the law is uncompromisingly rough in favor of employers.

At Vail, Marty Odom was a ski photographer for SharpShooter Imaging, a corporation that operates at 17 resorts across the country. Odom initially said he was off-duty and using his own camera when he shot the infamous photos of a skier dangling pantsless from a chairlift on New Year’s Day; the photos subsequently became an Internet sensation after appearing in the Vail Daily, The Smoking Gun and some 30,000 other Web sites.

SharpShooter suspended Odom indefinitely following publication of the images. There was a public outcry on Odom’s behalf, mainly because he said he wasn’t working at the time. (Turns out, as the Denver Post reported, Odom lied about which camera he used. According to a SharpShooter spokesman, he was in uniform, had signed out a company camera and submitted a time card to be paid for that day.)

Regardless of whether Odom technically was working at that moment, he was a witness to a news event and captured a photograph that happened to be unflattering for Vail Resorts. The company claims it did not pressure SharpShooter to fire Odom, but the fact is SharpShooter operates the photo concession at all five ski areas owned by Vail Resorts (Vail, Beaver Creek, Breckenridge, Keystone and Heavenly). The two corporations are partners.

SharpShooter apologized to the skier and said it suspended Odom for violating company policy. The spokesman called him a “rogue employee.”

As Jackson attorney Dave DeFazio pointed out to me today, if Odom had published a stunning photo that made Vail look great, SharpShooter likely would have looked past the transgression in company policy and made Odom employee of the month.

So it’s a question of censorship.

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Bruce Moats, a Cheyenne attorney who represents the Wyoming Press Association, says corporations are free to act in this manner. In Wyoming, like most states, employees of private companies can be fired “at will,” meaning for no reason at all.

“Private entities can interfere with free speech,” Moats says.

Jackson Hole Mountain Resort, for instance, forbids its employees from talking to the press, although spokespeople do arrange interviews from time to time when reporters ask permission.

Linda Burt, an attorney for the ACLU in Cheyenne, adds, “In Wyoming particularly we have very little protection from state law in terms of employment protection.” Workers are “only protected by a specific job contract,” she says.

The bottom line: Anyone is free to shoot a photograph, as long as it is legally obtained, and may distribute that photograph as they choose. But a corporation may fire an employee for virtually any reason, even if the person was lawfully exercising the right to free speech. Some right, eh?

(There is an exception to this maddening injustice — government, or public employees — and we’ll get to that in a moment. Another exception is discrimination over race, sex, age, etc.)

The national ACLU has a great fact sheet that puts the law in perspective. Basically, more than 200 years ago the founders of the United States viewed the government as the entity most likely to interfere with the rights of citizens.

“The Founders could not have imagined back then that, one day, concentrations of corporate power would exist on a scale rivaling, and in some cases exceeding, governmental power,” the ACLU says. The organization is fighting to change the laws to give employees more rights.

This brings us to the case in Jackson Hole, where Rando Steve, aka Steve Romeo, was dismissed from Teton County Search and Rescue by Sheriff Bob Zimmer for posting photos of the Headwall avalanche on his backcountry skiing blog, Teton AT.

Romeo, a volunteer member of the team, was called out to Jackson Hole Mountain Resort on the morning of Dec. 29 after the Headwall slid, buried several ski patrollers and smashed the Couloir restaurant atop the Bridger Gondola.

By the time he left work, drove to Teton Village and rode the Bridger Gondola up the mountain, a half-hour or so later, the rescue was over. Romeo had no Search and Rescue duties to perform. He snapped a few photos of the scene.

Later that day, Romeo posted the photos on Teton AT, saying it was important for the public to view the destructive power of an avalanche. He received two calls from resort employees — a ski patroller and an upper-level manager — criticizing him for posting the photos, and the sheriff asked that he remove them from the site.

He complied, but the public, voracious for information about the slide and suspicious of resort efforts to control that information, smuggled the photos back into view through other channels (Planet Jackson Hole even published one of the shots in its print edition without Romeo’s permission.)

Cara Froedge of the Jackson Hole News&Guide reported last week (no link available) that Sheriff Zimmer dismissed Romeo because he had violated a “spoken policy” for the Search and Rescue team.

Attorney Moats says that action raises an intriguing legal question because Zimmer, as a public servant, is held to a different standard than private employers — the highest standard. Government may not interfere with a citizen’s right to free speech, and Romeo’s photographs and writing may fall under that protection, Moats says.

(A rescue volunteer is not technically an employee, so the issue is further muddled but could be dissected in court, Moats says.)

Romeo has not raised a fight and has complied with the sheriff’s wishes, even passing up offers from major news outlets seeking to publish the photos. On the day of his dismissal, he sounded contrite and declined to comment for this or any other story. Zimmer retired from his post last week, and Romeo hopes to re-apply and eventually rejoin the Search and Rescue team.

Not only does Romeo have strong mountaineering skills, he has a flexible job and thus can respond to many rescues, traits that made him a valuable member of the team, a SAR volunteer told me. The public is worse off without his service.

In the past, Rando Steve wrote about Search and Rescue missions to give the public insight into backcountry hazards, the consequences of bad decision-making, and the workings of the publicly funded team. He never showed poor judgment in displaying gory photos or otherwise insensitive content.

Zimmer gave some faulty logic in the News&Guide article, equating “Romeo releasing pictures taken while on a Search and Rescue call to a deputy responding to a fatal car wreck and releasing those photographs as a private individual.”

Romeo took pictures of snow inside a building. There was no rescue operation; one could argue at that point he was an eyewitness to history — or a journalist.

Which brings us to the last, and actually the most heartening, twist of this whole debate: Bloggers, says attorney Moats, are entitled to the same protections under the First Amendment as the mainstream press.

In the courts, “the modern trend seems to be based on your intent,” Moats says of news gathering. “Are you capturing it with the intent of distributing it to the public in some manner?

“If you are doing that, you are a journalist as much as Tom Brokaw or anybody else would be,” Moats says.

This argument, sure to cause some heartburn on the second floor at 1225 Maple Way, has a long legal history dating to the “way of the old pamphleteers,” Moats says. Hooray for Common Sense!

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We could split hairs over company policies and in what capacity these photographers were working when they shot their controversial images, but the heart of the matter is censorship. In both cases ski resorts implicitly or overtly exerted pressure on the photographers because they did not like the content of the photographs.

A photograph is intellectual property. You can no more restrict someone’s right to publish an image than you can delete an experience from their memory.

The more one probes the laws governing free speech, the more disturbing the curbs on our liberties. The law is particularly galling in Wyoming, which has a libertarian streak and takes such pride in bucking authority. Maybe it’s time for the many so-called conservative Republican judges to adhere to their principles and stand up for the rights of individual citizens against corporations, which indeed have become more of a threat to liberty than government.

And perhaps, with Wall Street firms no longer looking like such a gravy train, some of our country’s brightest legal minds will forgo the payout and instead fight for these reforms in the courts and on the floors of our state legislatures.

Posted under Media, Politics, Ski Resorts, Sports, Wyoming