Do citizens have a constitutional right to take pictures at accident scenes, or do the police have the discretion to prevent this? Phil Trexler's article in yesterday's Beacon Journal concerned a man who took pictures of a five-year-old boy being freed from a revolving door where he had become stuck. An Akron reserve police officer seized the man's cell phone and erased four minutes of video and one still photo that the amateur photographer had taken of the scene. Did the police violate the photographer's constitutional rights?
For the Constitution to apply there must be some action by the government. If the person who erased the images worked for a private security company and not the government, the First Amendment would not even apply to the situation.
It is also possible that the actions of the police officer were not authorized by any statute, ordinance, or official policy. In that circumstance the photographer may have resort to legal remedies other than the First Amendment of the United States Constitution.
Assuming that the actions of the reserve police officer are attributable to and authorized by the state, the next question would be whether or the act of taking pictures constitutes a form of "expression." I think that it must. Photographs are an art form, and art is not only protected by the First Amendment, it is considered to be "high value speech" entitled to the utmost protection. Similarly, information concerning matters of public concern occupies a high rung in the ladder of constitutional importance; the Supreme Court has often prevented the government from interfering with newspapers or broadcasters when they seek to disseminate knowledge about current events and matters of public concern. The Court has also acknowledged that the First Amendment includes the right to study, to inquire, and to investigate. On the whole, it seems likely that there is a First Amendment right to take pictures.
But the First Amendment is not absolute (despite Justice Hugo Black's arguments to the contrary). There are many circumstances where expression may be restricted or suppressed because it causes harm – harm that outweighs the value of the expression. One situation where the government might wish to place limits on our right to freedom of expression is when we are invading someone else's privacy. Cases where freedom of speech and the right to privacy collide are difficult to resolve. For example, under state and federal privacy laws it is illegal to eavesdrop on other people's cell phone calls by using a scanner or some other recording device. It is even illegal to broadcast or print information about a private phone call if the information was obtained in violation of the Privacy Laws. However, in Bartnicki v. Vopper the Supreme Court ruled that a radio station has a constitutional right to broadcast a private phone conversation that had been illegally recorded on the ground that it concerned a matter of public importance. In the eavesdropped phone call in that case officials of a teachers' union were discussing whether to commit acts of violence during a teachers' strike, and the Court thought that despite the Privacy Laws the public had the right to know about this conversation. Accordingly, in Bartnicki freedom of expression won out over the right to privacy, but the Supreme Court was careful to note that if the conversation had been about something utterly private and not a matter of public concern it would have been illegal for the radio station to broadcast the recording.
Videos or pictures of arrests are probably matters of public concern – the public has a right to know whether or not proper police procedures are being followed. On the other hand, there would not seem to be a constitutional right to take pictures at the scene of a grisly automobile accident – members of the victim's family do not have to be subjected to the exploitation of their loss. This case involved a little boy stuck in a revolving door and the efforts of rescue teams to free him. Do we as citizens have a constitutional right to record an event like this? I can see arguments on both sides. What do you think?
{ 6 comments… read them below or add one }
Is taking a picture really expressive? I understand how publishing a picture can be expressive, but taking a picture doesn't itself communicate anything. This seems more like a potential freedom of the press issue as opposed to an infringement upon freedom of speech because freedom of the press, at least in my mind, would include protection of information gathering activities in addition to information disseminating activities. I think the Fourth Amendment claim for unlawful seizure of the camera as well as the Fourteenth Amendment claim for deprivation of the footage without due process of law would be more clear cut than a First Amendment claim.
The question begged here is: when does the filming have to start, if there is somehow an ability of the state to stop the filming? The most examined piece of film in history is the 8 mm movie footage shot by Abraham Zapruder at the Kennedy assassination. Should the FBI have had the right to destroy that footage? To comment on the prior comment, Zapruder's film is suffciently "creative" to be considered copyrightable, even though Zapruder, when he started to film (we all hope) had no expectation of what he would actually capture.
Or the question might be phrased: "When will irreparable harm have occurred, and when must the state act to prevent it?"
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Question: I always carry a digital camera on my belt. Took pics of accident scene here in this area of Maine. Fellow behind the wheel, got a little banging up. I also have a blog, which I share publicly. Being a City Councilor I have plenty of time on my hands. Now, putting pictures of accident scenes on my blog. Legal or what? Would like to buy a book on this subject, but not sure which one would apply to such instances as I have discussed. Blogs etc. Thanx,