Legal Hotline: Accident scene on public property

  • Jun 27, 2018

Melissa Melewsky, Media Law Counsel

 Q:  One of our photographers was taking a picture of an accident scene on a state highway, from the public street, when a firefighter told him to keep away and respect privacy. The firefighter complained to a state police officer on the scene who then threatened to arrest our photographer. The photographer left the public road as instructed and got permission to photograph the accident from an adjacent private property owner.  Was the police officer correct in ordering the photographer to leave the public road?

A:  No, the photographer has strong constitutional protections under the First Amendment to gather news and photograph newsworthy events on public property. 

In the case of accident scenes on public property like a state highway, the press has a constitutional right of access that allows them to reasonably gather news on public property.  The state highway is a “public forum” for First Amendment purposes.  The government can place reasonable time, place and manner restrictions on public forums, but those restrictions have to meet a rigorous three-part test: the restrictions must be content neutral, narrowly tailored to serve a significant government interest, and must leave open alternative channels of communication. Police can limit access to an accident scene on public property within the framework of the First Amendment, but any limit must be applied to all members of the public; the press cannot be singled out for negative treatment. 

Limited access might be appropriate at accident scenes on public property where public safety is an issue such as those involving a hazardous material spill, uncontrolled fire, likely explosion or other significant danger to public safety.  The police cannot limit access simply because they are concerned about privacy.  If a newsworthy event takes place on public property, like a public road, the press has a constitutional right of access.

Please note that if a law enforcement officer instructs a journalist to leave public property, they should do so or they risk arrest. Journalists arrested while gathering news can - and should - mount a vigorous defense, but that can be a lengthy and burdensome process. Alleged infringements on First Amendment rights can be pursued through the civil courts.  

As always, this is not intended to be, nor should it construed as, legal advice. Please call the Legal Hotline at (717) 703-3080 is you have a specific legal question.

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