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The U.S. Supreme Court has long held that the First Amendment protects the rights of individual citizens to produce and publish their own newsletters and publications without governmental interference. In 1938, in the case of Lovell v. City of Griffin, the court broadly defined the press as “every sort of publication which affords a vehicle of information and opinion.”
Following that reasoning, the court has concluded that everyone – each of us – has a constitutional right to cover the news equal to that of the traditional “press.” “(T)he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First National Bank v. Bellotti, 435 U.S. 765 (1978).
In 1972, the court even turned the tables on the press, ruling that “the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” Branzburg v. Hayes, 408 U.S. 665 (1972). In other words, rather than defining who the press is, the court concluded that the traditional media and citizens share the exact same right to cover newsworthy events.
Are there limits to the right to cover the news?
The right of all persons to cover the news is now a well-established constitutional right inherent in the First Amendment. Included in the right to cover the news is the right to photograph, film and video what happens in public. That right specifically includes the right to photograph, film and video public servants such as police, fire and EMS personnel doing their jobs in public. When a government employee interferes with the exercise of that right, the photographer’s First Amendment rights may be violated. That in turn may lead to a costly lawsuit in federal court.
The right to cover the news does indeed have its limits. The Supreme Court ruled that “(n)ewsmen have no constitutional right to the scenes of crime or disaster when the general public is excluded.” Branzburg, (1972). Unfortunately, the court has not provided much guidance on where the boundaries for the general public can be drawn.
When it comes to filming, the lower federal courts have consistently held that “the right to film is not without limitations. It may be subject to reasonable time, place and manner restrictions.” Glik v. Cunniffe, 655 F.3d 78 (1st Cir.,2011). The precise limits of those time, place and manner restrictions have yet to be fully defined.
In the absence of case law, what follows is my best effort to predict where the line will likely be drawn by the courts going forward. Given that the press’ right of access is no greater than the public’s right of access, if we can deny the public access to a certain area, we can deny it to the press and photographers as well.
Common examples of locations where the public has no right of access would be private property, such as a person’s home; the back of an EMS vehicle; or a treatment room in a hospital’s emergency department. Common places where the public has every right to take pictures would include public roads, sidewalks, public parks and public property.
At emergency scenes in public locations, we have three grounds to lawfully restrict public access:
1. Reasonable safety zones to protect members of the public. The public can generally be excluded from areas at emergency scenes that pose a risk of harm. Many states give responders clear statutory authority to exclude the public from unsafe areas. The specifics vary from jurisdiction to jurisdiction, but assuming that the public may be excluded, so may the media and photographers. My sense is that judges will not second guess our judgment about the need for a safety zone or its size, provided it is established in good faith. However, establishing a safety zone as a pretext simply to prevent someone from taking pictures will likely prompt greater judicial scrutiny.
2. Reasonable work/security zones so that members of the public are not interfering with our operations. A work zone is an area that responders need so that the public does not interfere with operations. It is not limited by safety concerns, but may be established where there are concerns about scene security; that equipment is not subject to being tampered with; and responders are not bumping into people as they go about their tasks.