Q: Our newspaper’s staff photographer took photos/video of of flames engulfing a home during a massive fire in Northern California. Some of the photos were from a property that a nearby resident told him it would be okay to be on. Some were from the property of the home that was burning. The residents of the engulfed home are requesting I take down the photos. I tried to talk through this with them, but they are understandably upset and seeking someone to blame for their pain.
Because I have no budget for legal help, I took down any photo/videos that were taken from that property but not any that were from the adjoining property. (Remember, we only had verbal permission to be on that adjoining property from a neighbor, not the actual homeowner. But that person hasn’t requested we take things down.)
I would like to know what are my rights.
Also, I feel that public interest in the middle of a wildfire burning in remote lands allows a reasonable ability to take photos even on private property during a natural disaster. My photographer tells me he was just standing in what must have been the front yard. (It is hard to tell as it was a major fire and there was a lot of damage ongoing.) Otherwise, reporters are being unnecessarily hampered in getting out information. Am I accurate in that?
A: Broadly speaking, there are a number of pieces to this kind of situation. (1) Was the newsgatherer somewhere he or she shouldn’t have been when the news was gathered; (2) did the newsgatherer collect information or images he or she shouldn’t have?; and (3) did the newsgatherer disseminate information or images that shouldn’t have been disseminated? There can be First Amendment considerations relevant to each piece.
The first piece generally means that the right to gather news can be significantly limited on private property, especially a residence. The disaster circumstances could
change the analysis. A California statute giving public safety officers the right to exclude the public from disaster scenes exempts the press. That particular statute probably doesn’t trump the right of property owners to exclude newsgathering on their property, but it reflects a policy in favor of news coverage of disasters. This policy – grounded in First Amendment principles – could be relevant in the kind of situation you describe.
A good reference case in California is Miller v. Nat’l Broad. Co., 187 Cal. App. 3d 1463 (1986). In that case, a television news crew accompanied paramedics into the home of a person suffering what proved to be a fatal heart attack. The news crew didn’t have permission from the homeowners to enter, which the court factored heavily into the analysis of why the victim’s wife could bring claims (including trespassing) against the news agency.
The second piece is typically implicated when the images or information gathered are intensely personal. For example, a California anti-paparazzi statute prohibits trespassing in order to capture images, video, or audio of someone engaging in a personal or familial activity.
When the newsgatherer is in a public place, however, he or she has fairly broad latitude to capture whatever is happening – even if it is sensitive in nature. A good reference case on this piece is Shulman v. Group W Productions, Inc., 18 Cal. 4th 200 (1998), which involved recordings of individuals injured in a car accident. The court drew distinctions between recordings made at the scene of the crash and in the rescue helicopter, where the victims might have had a reasonable expectation of privacy. Most of the cases around this issue involve information about and recordings of people. It is not clear that a court would give the same kind of solicitude about a burning residence, even though the residents might consider the event highly personal and sensitive.
As for the third piece, the general rule is that lawfully obtained information and materials can be disseminated. If news was gathered in a place the newsgatherer didn’t
have a right to be, this principle might not protect the newsgatherer. However, this piece doesn’t necessarily come into play unless something about the material makes dissemination wrongful – for example, if confidential business information or especially private information about an individual were disclosed. In extreme examples – the cases that come to mind involve images of dead or dying family members – courts have said dissemination could form the basis of a claim for intentional infliction of emotional distress. It’s hard to imagine the dissemination of an image of a person’s house burning rising to the level of outrageousness necessary for that kind of claim.
Bryan Cave Leighton Paisner 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. No attorney-client relationship has been formed by way of this response.