First Amendment and Photography Question

Today’s burning question: If the First Amendment gives people the right to film us in public doing our job, doesn’t it also give a firefighter the right to film while on duty? Our chief says we surrender our First Amendment Rights when we are on duty. How can that be?

Answer: This is going to sound like double-talk, but the idea that the First Amendment gives people a right to film as well as the fact we “surrender” our rights, needs to be clarified before I can even begin to answer the question.

The First Amendment serves as a limitation on government. Government cannot violate people’s First Amendment Rights. The First Amendment does not extend to private parties. For example, a private sector employer is free to suppress the free speech rights of its employees without a concern for violating the 1st Amendment.

As you correctly mentioned, the public has a right to film governmental employees who are engaged in the public’s work in public places. But to be more specific, government – through its employees – cannot stop private citizens from filming.

So far, nothing earth shattering, but it is necessary to understand these foundational issues before we get to your question. A few more nuts and bolts are also in order.

Government includes agencies and public employers at the local, state or federal levels. All three levels of government must respect the First Amendment Rights of everyone, including its employees.

Now, let’s look at employer rights. An employer is entitled to place reasonable restrictions upon its employees while they are working. An employer can require its employees to wear certain uniforms, to work certain hours, and to follow certain procedures. An employer can even prohibit its employees from taking photos while at work. This applies whether the employer is in the private sector or the public sector. It is an inherent right of the employer.

You are a firefighter. Your fire department (which I assume is a local municipal fire department) can limit your picture taking while you are on-duty. That is an inherent right of an employer.

To start to zero in on an answer to your question, your employer can restrict your rights to take photos while on duty… but… what if your employer does not do so? What if your employer allows you to film at work?  What happens if a governmental official from a different level of government (let’s say a county sheriff, a state trooper or FBI agent) attempts to stop you from filming?

While your employer can restrict your right to film in public while on-duty, governmental officials who are not your employer still must respect your 1st Amendment Rights. They are not your employer and arguably must respect (not violate) your First Amendment Rights.

So to summarize – it is not as simple as saying that you “surrender your rights” when you are at work. Admittedly, your employer has the right to put reasonable limitations on what you do while you are being paid, and that includes limiting your right to take photos. However, that does not mean you lose your 1st Amendment Rights while at work. It is possible that a firefighter’s 1st Amendment Rights could be violated by another level of government that is not the person’s employer.

This is a novel question for me and I am reaching out to my good friend and fellow firefighter-attorney Chip Comstock for his input. Chip has a very good grasp of 1st Amendment law. I would also encourage any other 1st Amendment scholars out there to weigh in with your perspectives.