First Amendment Photography Followup

Today’s burning question: Regarding your post on violating the First Amendment rights of firefighters by banning picture taking while on duty, a government agency would likely have the right to ban personnel from another governmental agency from filming at their incident scene for the same reasons you mentioned that an employer can ban them, and also because of a compelling interest in maintaining the safety of the citizens and their employees. In time critical missions, all personnel need to be focused on the necessary tasks. Someone who is stopping to take pictures is not focused on those tasks. In addition, others must now be watching out for their safety while they are filming.  Am I missing something?

Answer:  In my advancing age I have realized when two people differ significantly on an issue, they often have two entirely different scenarios in their mind’s eye. I believe that is what we have here.

In this case you are probably envisioning Fire Department A (FD A) wanting to stop members of Fire Department B (FD B) from filming at an incident in Community A. While we have no cases to fall back on, your rational in this context makes complete sense. However, that rational has been rejected by the US Supreme Court and other federal courts when it comes to any level of government (federal, state or local) trying to block civilian photo-taking. Civilians have a 1st Amendment right to film in public, and actions by government to stop the photo-taking would be a civil rights violation.

When it comes to governmental employees, FD A is able to prevent firefighters from FD A from taking photos through its power as an employer. The employment relationship between a government employer and its employees avoids a 1st Amendment challenge.

When it comes to firefighters from different departments, ICS and/or a mutual aid agreement mechanism could (and should) be used to address the issue of FD A stopping FD B personnel from taking photos. For example, the Chief of FD B can prohibit members of FD B from filming while at incidents in FD A’s community, and vice versa. However, when the Chief of FD A tries to stop FD B’s members, the question of a civil rights violation is again raised. No doubt FD A can stop FD A’s personnel from filming and FD B can stop FD B personnel from filming. I am not as convinced that FD A can lawfully stop FD B personnel from filming without FD B’s assistance. It raises an interesting 1st Amendment issue for sure….

That is NOT the scenario I had in my mind’s eye.

My fact pattern involves a state police officer (or perhaps a county sheriff) arresting a firefighter from FD A for filming at an incident in Community A. If the arrested firefighter was my client you could absolutely count on me raising the 1st Amendment to defend the firefighter.  From there we would see what the court decides. Again, this is uncharted territory.

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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