Question
We have been having difficulty getting access to photographing firefighting efforts on a National Forest within the state for a wildfire. U.S. Forest Service personnel suggest that California Penal Code 409.5 doesn’t apply to federal employees or federal land. They also refuse to allow media through road blocks on county roads leading to National Forest, saying that doing so would endanger their firefighters. Are they legally able to do this? If not, how do we gain access to these areas without getting arrested in the process?
Answer
It is true that a state statute cannot control the activities of federal officials on federal land.
However, federal authorities are bound by the First Amendment, and there are cases (though not in California) holding that fire officials violated the First Amendment by imposing limits on press photographers’ access to fires that are not justified by an overriding need. It should not be enough for federal fire officials to say that access might endanger firefighters. As a practical matter, that is demonstrably not true in most cases, since press photographers routinely entire fire areas under Penal Code § 409.5 without incident. As a legal matter, it is too speculative. There might be particular cases in which press presence would interfere with the fire fighters, in which case it would be appropriate to deny access, and there might even be cases where it would put the firefighters in danger. But in those cases the fire officials should explain, in detail, how press access would endanger fire fighters or interfere with their work (as opposed to some general rule that press presence always endangers or interferes with firefighters) and, if they cannot, the denial of access may be unconstitutional.
Unfortunately, if the paper cannot get a supervisor to see reason, you may have no resource but sending a legal letter from your attorney. It shouldn’t cost much and may get their attention.
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