Q: As a newspaper photographer, I was covering a protest over Cal Trans clearing trees alongside the Highway just outside of town. Then a CHP officer drove up and approached me saying ”you have to leave the area.” Then I asked the officer if I could walk just to the side and take a photo of the tree cutting activity behind them and was refused access again. I was wearing my press pass on my chest and I had introduced myself as the local newspaper’s Photographer and said that I was just trying to do my job and that the people in our community have a right to know what is being done to their valley, and that Caltrans and the CHP need to be transparent with our small community. Then I was told to leave the area again or and told by the officer that, ”I’m giving you a lawful order to leave the area or you will be arrested.” I left the area, but was I within my rights to stay?
A: As a general matter, if you had a legal right to be present, you had a legal right to make photographs while you were there. If you were on public property and not physically interfering with the either the flow of traffic or the tree cutting, you likely had a right to be there and make photographs. However, if you were on private property — I am not sure form your inquiry whether the work being done is on private property — without permission of the property owner, then you could be removed from the property for any reason. If the area where you were was ordinarily public property but had been cordoned off or closed to the public because the police had declared it an accident or disaster scene, then, as a duly authorized member of the press, you had a statutory right to be within that ‘scene.” Penal Code 409.5(d).
Of course, whether you had a legal right to be on public property can sometime be difficult to determine. Highway right of ways are indeed public property. But they are also frequently and legitimately declared off-limits to pedestrians. In such a situation, you could be asked to leave even if the right-of-way provided a good vantage point for viewing a newsworthy activity.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.