First Amendment and the Press’s Right to Take Photos


I received a question that was posted as a comment to one of the stories on firefighters interfering with the public’s right to cover news worthy events. I have paraphrased what was asked… and turned it into today’s burning question:

Is safety a legitimate reason to exclude the press from parts of an emergency scene? Excluding the public, yes, but I don't think safety should be grounds for excluding the press. According to all of the PIO classes I have attended safety cannot be used as a reason to exclude press. PIO's are being told that the only exclusions allowed for the press (leaving out the question of "who is the press") are (1) private property (trespass), (2) interference (reasonable work zone) and (3) exclusion from a crime scene.

Not that I don’t believe you, but is there a statutory provision or case law that you are using when you tell us we can exclude the press because of safety concerns?

Answer: It sounds to me like members of the press may have been involved in teaching your PIO classes, which is entirely understandable. They have an invaluable perspective to share with the fire service – and we need to listen. However, along with that perspective comes a certain bias in favor of the media that the law does not share.

So let me get this straight: according to these “instructors” we cannot deny the press access to a location based on safety concerns? Seriously? That means I could be advancing a hose line into a structure and have a news camera team along side of me? I cannot order them to stay outside? Or entering a hazmat hotzone in level A we might find a cameraman sauntering in? And we’d have to rely on the crime scene or work zone exclusion? I’m not even sure we can enforce the trespass exclusion – that is up to the property owner.  What if the property owner gives the news team permission to trespass?  Seriously? Your instructors told you we cannot stop the press over safety concerns?

Let’s assume your “instructors” are correct (they are not but play along). The Supreme Court has made it abundantly clear – the right to film and cover the news is not limited to the media – it extends to everyone … EVERYONE… so if we have to allow the media to go somewhere that is unsafe… then the public has the same right…  an 18 year old with an iPhone camera has the exact same rights to cover the news as a fully credentialed NBC news team.

OK… enough of the fun stuff… let’s get to the law. The issue is really cut and dried. We can establish and enforce a safety zone for both the public and the press. In Branzburg v. Hayes, 408 U.S. 665 (1972) the US Supreme Court said “the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” In other words, the press’s right of access is no greater that the public’s right of access.  That means if we can deny the public access to a certain area out of concern for the public safety, we can deny it to the press as well.

If you are following this discussion… you will notice another interesting question is raised: if we give the press access to a scene (think the TV show COPS), then can any 18 year old with an iPhone demand the same access??? …. The answer to that is going to have to wait til next time.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • Pedro j torres

    You can’t stop the press protected by the First Amendment Everyone should read the Constitution

    • The Constitution has been interpreted by the US Supreme Court… it is the Supreme Court cases that need to be read and understood – and the cases say the right of the press is no greater than the right of the public to cover newsworthy events.

  • Thanks Curt. You are correct, all of the PIO classes are taught, at least in part, by the press themselves. This helps! Thanks for answering the "Burning Question"!

  • ukfbbuff

    In California; the CHP lists under Section 409.5 of the penal code:

    "Nothing in this section shall prevent a duly authorized representative of any news service from entering the areas closed". (to the public PC sec. 409.5-a).

    "NOTE: A sfatey hazard to the press does not justify restriction; However it is CHP policy to warn the media of potential danger before allowing access".




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