By J. DeVoy
Illinois Representative Tom Holbrook introduced a bill in the Illinois legislature that would severely curtail the ability of third parties to take photos of accident scenes. (Source.) While the law would allow accident victims to take photos of their wrecked cars, Holbrook believes that citizen journalists often get in the way of emergency response personnel. In the article, he weaves an incredible hypothetical about a citizen-journalist using a cell phone over a fireman’s shoulders while he’s using the jaws of life to save the innocent passengers. After all, if you take photos of something that likely will be reported on the news anyway, grandma dies! For the politically inclined, fear not: the “or the Terrorists win” meme is alive and well.
Except for “specified purposes” not identified in the article, the bill prohibits using wireless devices within 500 feet of an accident. Five feet would be concerning, but might withstand judicial scrutiny. Ten feet may also stand up to judicial review, though it is more unlikely to be upheld by a court with any concern for the First Amendment. Five hundred feet, however, is ludicrous. If this bill becomes law, the overbreadth doctrine will tear it a new asshole.
Whether intentional or not, this law seems like an orthogonal response to the Nikki Catsouras controversy, where her family used the dubious services of Reputation Defender-r-r-r to take down grisly photos of a high-speed accident she had in her father’s porsche. The Legal Satyricon previously discussed this issue in The Catsouras Photos, Privacy, and Privilege.
Unsurprisingly, the photos propagated around the internet, are still available (google it if you want them, we don’t post links to them), and the parents’ efforts (using the worthless services of “Reputation Defender”) to censor the free flow of information turned their daughter into an internet meme (Porsche Girl) and spread the photos far wider than they ever made it before. Barbara Streisand can explain why.
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The right to take pictures in public is under severe attack in Illinois (and elsewhere), where authorities curtail videorecording in public through wiretapping laws. See e.g., ACLU v. Alvarez, No. 1:10-cv-05235 ECF 42 at 7-8 (N.D. Ill. January 10, 2011) (holding that taking video coupled with audio of police in public can be prohibited because there is no 1A right to record), available at link.
I agree with you, of course–the statute is fatally overbroad (I hope). And as you seem to imply, the 1A would protect taking such pictures (I hope). But Illinois is already kicking the 1A around like a puppy when it comes to image capture, and courts and prosecutors follow along.
Thank you also for mentioning Reputation Defender. I did not know about them.
Aren’t there already laws specifically about impeding emergency personnel? So isn’t that a specious justification for a law regarding photography, no matter the distance?
Also, though I can’t find a link to the text of the bill, it appears to be a broad ban on using electronic devices. So a) I actually can continue to take tasteless photos with a film camera, if I were so inclined, and b) I really hope it’s written carefully lest they ban using a cell phone to call 911.