First Amendment Right To Film and On-Duty Personnel

Today’s burning question: My chief thinks he can stop us from taking photos at incident scenes. He does not seem to understand we have a 1st Amendment Right to film in public places. Can you point me to any cases showing that an on-duty firefighter has a 1st Amendment Right to film?

Answer: No, I cannot. It’s probably because as an on-duty firefighter, you do not have a  1st Amendment Right that trumps the right of your employer to prohibit you from filming. When you are on duty, you are a governmental agent: you work for government. Your fire chief, subject to collective bargaining laws where applicable (and even that may be a stretch), has the right to prohibit you from taking photos while on-duty.

There are plenty of cases where firefighters have been disciplined for using their personal cameras/cellphones to film while on duty. I have not seen one where a court has ruled that an on-duty firefighter has a 1st Amendment Right to film. The reality is when a firefighter goes to an emergency scene – any images he/she takes will likely qualify as a public record under state law. That being the case, the firefighter and the fire department have a legal obligation to retain any photos taken and make them available to the public as required by the public records law.

A public employee in possession of a public record can be required to produce that public record. Failing to produce a public record when lawfully requested is a criminal offense in many states. In addition, the destruction of a public record in violation of the public record law is a criminal offense in many/most states. All in all, I find it hard to believe that a court would conclude that an on-duty firefighter would be able to use the 1st Amendment to force his/her employer to allow filming at emergency scenes.

I will open this up to anyone who is aware of such a case where a firefighter argued (successfully or otherwise) that such a 1st Amendment Right existed.

Off-duty is another story… An off-duty firefighter has 1st Amendment Rights to film in public… but on-duty personnel at incident scenes can be prohibited from doing so by their employer.

An interesting (and very advanced) question arises: While a fire department/employer has a right to control what a firefighter/employee does while on-duty… might an on-duty firefighter have an enforceable 1st Amendment Right to film if an entity other than his/her employer (perhaps the State Police) sought to prevent him/her from filming? Again, I have not seen any case law on this issue. It is possible that a fire department may be able prohibit an on-duty firefighter from filming despite the 1st Amendment, while another government agency could conceivably violate the 1st Amendment by blocking the same firefighter from filming.

I’d appreciate any cases or thoughts folks care to share in this regard.

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.
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