From the Legal Hotline

By Teri Henning, General Counsel; Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association

Q: There was an accident involving a construction worker on a state highway. One of our photographers was taking a picture of the accident scene when a firefighter told him to keep away and “have some decency, the guy is hurt.” The firefighter complained to a state police officer on the scene who then threatened to arrest our photographer. The photographer left the state highway as instructed and got permission to photograph from an adjacent 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 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 photograph the scene. The highway is public and is therefore 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 but that limit must be applied to all members of the public; the press cannot be singled out for negative treatment.

A likely cause of limited access might be an accident scene 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 for the privacy or the feelings of those involved in the accident. If it’s a newsworthy event on public property, the press has a constitutional right of access.

Please call the Legal Hotline at (717) 703-3080 if you have a specific legal question.

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PNA Legal Hotline: (717) 703-3080