Is There a First Amendment Right to Take Pictures at Accident Scenes?

     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?