(dissenting). The state has a significant interest in keeping people away from the site of an accident or crime to expedite assisting victims, to preserve evidence or to protect the public from injury. This state interest, however, is not at issue in this case. The record shows that the defendant was not interfering with or obstructing emergency personnel and that neither he nor other observers were in danger.
The issue in this case is whether the defendant’s refusing to obey an officer’s command to leave the accident scene constitutes the offense of disorderly conduct as defined in the Oak Creek ordinance. I conclude it does not. Moreover, I conclude that this court should acknowledge that a representative of the news media may function as a proxy for the public in certain situations where public access is limited.
The question before the court is whether this defendant’s refusal to obey an officer’s command to leave the scene of an accident violates the Oak Creek disorderly conduct ordinance under which the defendant was charged. The court does not determine in this case whether the defendant’s conduct is wise, is in the public interest, or violates some other law.
The majority opinion concedes that the defendant’s conduct does not fall within the types of disorderly conduct specified in the ordinance. The majority opinion recognizes that the defendant’s conduct was not violent, abusive, indecent, profane, boisterous or unreasonably loud. Thus to be a violation of the ordinance, the defendant’s conduct must fall within the ordinance’s catchall language, that is, the city must *557prove that the defendant’s conduct is “otherwise disorderly.”
The defendant in this case refused to obey an officer’s command to leave. This court has said that mere refusal to obey an officer’s command does not ordinarily constitute “otherwise disorderly” conduct.
In State v. Werstein, 60 Wis. 2d 668, 211 N.W.2d 437 (1973), the court found that the mere presence of demonstrators at an induction center, together with the demonstrators’ refusal to obey an officer’s command, did not constitute “otherwise disorderly” conduct. The court specifically noted that the state had not adequately proven that fears of future disruption were reasonable. The court also took note that the police did not exclude other unauthorized visitors. Id. at 676. These two circumstances distinguished the Werstein case from previous cases in which the court had found protesters’ behavior to be disorderly.
The facts in this case are analogous to those in Werstein. In both cases there was no evidence that the defendant was disruptive. The majority opinion suggests that the defendant’s presence in this case could have interfered with rescue and fire-fighting efforts or that the defendant himself might have been in danger in the event of fire or explosion. Such eventualities are speculative and therefore cannot, under the law as set forth in Werstein, constitute grounds for finding the defendant’s conduct to be disorderly conduct.
Furthermore, in this case as in Werstein, it is significant that, according to the record, “like action” was not taken against others. The defendant here produced evidence that a number of other news gatherers took pictures and otherwise surveyed the crash site from various points inside the police boundary without being disturbed or challenged by the police.
*558I conclude that the majority opinion’s interpretation of the Oak Creek disorderly conduct ordinance cannot be reconciled with this court’s earlier decisions interpreting the disorderly conduct statute upon which the ordinance is based. I conclude that the facts of this case do not support a finding that the defendant committed “substantial intrusions which offend the normal sensibilities of average persons or which constitute significantly abusive or disturbing demeanor in the eyes of reasonable persons.” Werstein, supra, 60 Wis. 2d at 674, quoting State v. Zwicker, 41 Wis. 2d 497, 508, 164 N.W.2d 512, dismissed 396 U.S. 26 (1969).
I — I
The second issue the defendant raises is whether the defendant’s conduct in gathering information is protected by the federal and state constitutions.
According to the majority opinion, the airport officials provided the news gatherers with access to the scene of the crash: The airport director briefed news gatherers at 4:30 p.m. and then took them to the scene of the crash. Majority at 553. The logical conclusion from the majority's view of the facts would appear to be that airport personnel did not interfere with the defendant's news gathering activity and that therefore no constitutional issue is presented.
Nevertheless the majority opinion concludes that the federal constitution does not protect the media’s right to gather information. The majority opinion then declines to discuss the question of whether the state constitution protects the media’s right to gather information on the ground that news gatherers were given access to the crash site in this case.
*559I am at a loss to understand why the majority opinion discusses (apparently in dicta) the federal constitution, in light of the majority opinion’s factual conclusion that there was no interference with the defendant’s news gathering activity and in light of its refusal to discuss the state constitutional question.
The majority opinion does not, in my opinion, adequately address the defendant’s argument regarding the rights of news gatherers to access to an accident scene.
The defendant does not argue that the government must always allow news gatherers access to an accident scene. Rather the defendant asks this court to hold that governmental personnel must give news gatherers access to a position at an accident from which they can observe emergency personnel in action unless exclusion of news gatherers from all locations is required to enable emergency personnel to perform their tasks. The defendant argues that this standard accommodates two important objectives: It enables the media to inform the public about the accident and governmental operations while it prevents news gatherers from jeopardizing people’s lives, health or property.
While the United States Supreme Court has not explicitly recognized a constitutional protection for news gatherers’ access to an accident scene, the Court has recognized that media representatives serve as surrogates for the public. Chief Justice Warren Burger, writing in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-73 (1980), about the right of the public and the press to attend criminal trials observed:
Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly *560through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public.
Chief Justice Burger recognized in the Richmond Newspapers case that government authorities have allowed priority access to news gatherers in situations where public access is limited by circumstance. The Chief Justice wrote: “While media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard.” Richmond Newspapers, supra, 448 U.S. at 572-573.
In Saxbe v. Washington Post Co., 417 U.S. 843, 847 (1974), Justice Potter Stewart, writing for the court, acknowledged that sometimes the press is given greater access to information than the public. The Justice observed that “members of the press are accorded substantial access to the federal prisons in order to observe and report the conditions they find there. Indeed, journalists are given access to the prisons and to prison inmates that in significant respects exceeds that afforded to members of the general public.”
This court has itself institutionalized procedures for accommodating media personnel — procedures which do not provide similar rights to private individuals. Chapter 61 of the Supreme Court Rules, entitled Rules Governing Electronic Media and Still Photography Coverage of Judicial Proceedings, concludes with the caveat, “The privileges granted by this chapter to photograph, televise and record court proceedings may be exercised only by persons or organizations which are part of the news media.” S.C.R. sec. 61.12.
I conclude that, in determining the scope of news gatherers’ access to accidents, the court can and should *561take into consideration the media’s role as the “eyes and ears” of the public at large. Cf., State ex rel. Newspapers v. Showers, 135 Wis. 2d 77, 81, 398 N.W.2d 154 (1987). Time, place and manner restrictions on access to the site of an accident which are properly applicable to the general public may not be appropriate when applied to the media.
For the reasons set forth I do not join the majority opinion.
I am authorized to state that Chief Justice Nathan S. Heffernan and Justice William A. Bablitch join this dissent.