Editor’s Note: This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at firstname.lastname@example.org.
Can a firefighter ask a bystander to stop filming an emergency scene?
My advice for firefighters and EMS personnel is relatively simple: Ignore folks who are filming and focus your attention on your job. The explanation is a bit more complicated, but hopefully will help folks understand the reasoning behind this simple advice.
The public has a Constitutional right to film in public places. The U.S. Supreme Court has affirmed and reaffirmed that the First Amendment right to free speech and freedom of the press includes the right of the public to observe, record and share things that happen in public places. The emergencies that we respond to, combined with the fact that we are public employees performing work on behalf of the public, create the exact type of scenario where the right to film in public is the strongest.
Arguably, when in private locations we may be in a position to request people not to film, but expecting firefighters to be able to determine whether a location is public or private on the spot—when lawyers and judges with weeks to consider may not agree—is expecting too much. Given the energy level common at incident scenes, coupled with the importance of responders focusing on the tasks at hand, it is best not to be distracted by such ancillary matters.
While one might argue that politely asking people not to film should be permissible, even that can become problematic. The very act of politely asking someone not to film will be viewed by some as a sign a governmental tyranny (I kid you not). They will argue that when an authority figure such as a firefighter (stop snickering) makes a polite request to stop filming, it is hard for the average person to distinguish it from an order that can be backed up by the threat of arrest. They will point out that whether politely phrased or not, it is a request by government made to a citizen asking them to waive a Constitutional right—something that should not be taken lightly.
In particular, those who have anointed themselves to be First Amendment auditors will seize on such a request to engage firefighters in a debate that will inevitably cast the auditor as a Constitutional superhero, with the firefighter being portrayed as the Constitutionally ignorant villain—all while the camera-is-rolling with a live feed to the internet. In the meantime, the firefighter’s focus of attention will be distracted from where it needs to be.
Stay in the mindset of being a pro athlete: Focus on the task at hand and ignore those on the sidelines who may be filming.
Besides the risk of being distracted, when we are at emergency scenes we are not in the right frame of mind to engage in complex philosophical debates about the First Amendment, governmental tyranny, and why folks ought not to be filming. In my experience, First Amendment auditors are always game for such debates. In fact, they relish the opportunity.
Not to be confused with the above discussion about asking folks to stop filming is our ability to create exclusion zones at emergency incidents where necessary. I say we should not confuse the two issues because we cannot create exclusion zones merely to stop folks from filming. We can exclude members of the public from certain areas for three reasons:
- Because their safety may be at risk
- Because the area may be a possible crime scene where evidence may exist
- Because we need a certain secure perimeter to work so we are not bumping into folks and so they are not interfering with our operations.
None of these three reasons has anything whatsoever to do with filming and should not be used as a pretext to exclude photographers.
Even the most obnoxious First Amendment auditors, who incidentally know the First Amendment better than most attorneys, understand that if you tell them you need to create a safety zone, a crime scene exclusion zone or a secure work perimeter, they must move back. However, they will also recognize a bluff where one of these legitimate reasons is being used as a pretext to violate their First Amendment rights. Using an exclusion zone as a pretext to stop a First Amendment auditor from filming will provoke a philosophical debate.
To wrap up this discussion, while there may appear to be nothing inherently wrong or illegal in politely requesting citizens to stop filming, my advice is to avoid the problem by ignoring those taking the imagery. If firefighters need to create an exclusion zone, do so without regard for the fact that folks are filming, and certainly not because folks are filming. Stay in the mindset of being a pro athlete: Focus on the task at hand and ignore those on the sidelines who may be filming.