Legal Hotline: Public Road Accidents

Legal Hotline: Public Road Accidents

PNA Legal Hotline

Q: One of our journalists was covering an accident scene on a public highway, from the public street, when a police officer threatened to arrest him if he didn’t leave. None of the other members of the public in the area were similarly threatened. The journalist 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 journalist to leave the public road?

A: Journalists have 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 that is open to the general public, the press has a constitutional right of access that allows them to reasonably gather news. The public road 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 in order to pass constitutional muster:

1. The restrictions must be content neutral,
2. The restrictions must be narrowly tailored to serve a significant government interest, and
3. The government must leave open alternative channels of communication.

Government officials can limit access to an accident scene on public property within the constitutional 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 ongoing issue such as those involving a hazardous material spill, uncontrolled fire, likely explosion or other significant danger to public safety. Government officials 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 risk arrest and subsequent prosecution. Journalists arrested while gathering news on public property can – and should – mount a vigorous defense, but that can be a lengthy and burdensome process. It is a good practice to carry a press pass and government-issued identification when covering events on public property as many government officials recognize the constitutional mandates that govern their actions and the important role the press plays in democracy. It is also important to remember that alleged infringements on First Amendment rights can be pursued through the civil courts.

As always, this is not intended to be, nor should it be construed as, legal advice. Please call the Legal Hotline at (717) 703-3080 or your news organization’s private counsel if you have a specific legal question about First Amendment rights.