FREE PRESS -- A journalist has no First Amendment right to shoot pictures at an accident scene from which the public has been excluded, a federal judge decided Tuesday, ruling against an Oakland Tribune photographer who was arrested for taking photos a police officer thought were inappropriate, reports the BayNewser.

The decision by U.S. District Court Judge Charles Breyer—younger brother of U.S. Supreme Court Justice Stephen Breyer—is not surprising, although the facts of the case are outrageous for working photojournalists (not paparazzi, just ordinary news gatherers), and equally threatening to anyone using a cellphone camera to record an accident scene.

What is surprising is that the photographer's lawyer chose to sue in federal court. California law does provide the affirmative protection this plaintiff should have had, in Penal Code Section 409.5, subdivision (d).

409.5.(a) Whenever a menace to the public health or safety is created by a calamity including a  flood, storm, fire, earthquake, explosion, accident, or other disaster, officers of the Department of the California Highway Patrol, police departments, marshal's office or sheriff's office, any officer or employee of the Department of Forestry and Fire Protection designated a peace officer by subdivision (g) of Section 830.2, any officer or employee of the Department of Parks and Recreation designated a peace officer by subdivision (f) of Section 830.2, any officer or employee of the Department of Fish and Game designated a peace officer under subdivision (e) of Section 830.2, and any publicly employed full-time lifeguard or publicly employed full-time marine safety officer while acting in a supervisory position in the performance of his or her official duties, may close the area where the menace exists for the duration thereof by means of ropes, markers, or guards to any and all persons not authorized by the lifeguard or officer to enter or remain within the enclosed area.  If the calamity creates an immediate menace to the public health, the local health officer may close the area where the menace exists pursuant to the conditions set forth in this section.
   (b) Officers of the Department of the California Highway Patrol, police departments, marshal's office or sheriff's office, officers of the Department of Fish and Game designated as peace officers by subdivision (e) of Section 830.2, or officers of the Department of Forestry and Fire Protection designated as peace officers by subdivision (g) of Section 830.2 may close the immediate area surrounding any emergency field command post or any other command post activated for the purpose of abating any calamity enumerated in this section or any riot or other civil disturbance to any and all unauthorized persons pursuant to the conditions set forth in this section whether or not the field command post or other command post is located near to the actual calamity or riot or other civil disturbance.
   (c) Any unauthorized person who willfully and knowingly enters an area closed pursuant to subdivision (a) or (b) and who willfully remains within the area after receiving notice to evacuate or leave shall be guilty of a misdemeanor.
   (d) Nothing in this section shall prevent a duly authorized representative of any news service, newspaper, or radio or television station or network from entering the areas closed pursuant to this section.