Guest Op/Ed: Proposed House Bill Violates First Amendment

Recently, Rep. Carl Zimmermann (D-Palm Harbor) filed a bill (HB 677) that would require websites to delete mug shots within 15 days of being notified that the charges did not result in a conviction. The bill would subject the website operator to fines and even a defamation lawsuit if the request was not complied with. In addition, the website could not charge anything to remove the mug shot. 

The bill, as proposed, is as follows, verbatim:

A bill to be entitled

An act relating to websites containing information concerning persons charged with crimes; creating s. 836.12, F.S.; requiring that the operators of websites containing personal information of persons charged with crimes remove a person's name and personal information within a specified period after notice that the person is acquitted or the charges are dropped or otherwise resolved without conviction; providing a civil penalty; providing for a presumption of defamation; providing an effective date. 

Be It Enacted by the Legislature of the State of Florida: 

Section 1. Section 836.12, Florida Statutes, is created to read:

836.12 Websites containing information concerning persons charged with crimes. -- The operator of a website that contains the name and personal information, including any photograph or digital image, of a person charged with a crime shall, within 15 days after written notification from the person or the person's designee, remove the person's name and personal information if the person is acquitted or the charges are dropped or otherwise resolved without a conviction. The removal must be without charge to the person. Failure of the website operator to remove the person's name or personal information shall result in a civil penalty of $100 per instance per week and, after 45 days, creates a presumption of defamation of character of the person. 

Section 2. This act shall take effect October 1, 2013.

First of all, the law, as proposed, is unconstitutional. The First Amendment of the Bill of Rights of the U.S. Constitution guarantees freedom of the press, to wit:

The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. [Emphasis added.]

Originally, the First Amendment applied only to laws enacted by the Congress. However, starting with Gitlow v. New York, the Supreme Court has applied the First Amendment to each state. 

In fact, Barbara Petersen of the First Amendment Foundation agrees. "It's just I don't think they can do it the way this bill does it." She says it's unconstitutional because the proposed law tells people what they can publish, which the First Amendment prohibits, as long as the information is true, and the publisher got it legally, according to Sarasota television station WWSB.

Secondly, the state already has procedures in place for the removal of arrest information in certain cases. That procedure is called "expungement." If a person is wrongfully arrested or the charges are dropped and the person has no other convictions on his/her record, and in certain other cases, a judge may order the expungement, if requested.

Thirdly, the proposed bill does not differentiate between government agencies, like sheriff's offices, news websites, or commercial website operators which publish arrest records and mug shots, making the bill vague on the face of it and impossible to enforce.

Furthermore, NewsManatee, which publishes legally obtained arrest information and mug shots from law enforcement, and also publishes other local, national and world news for the benefit of the community as a not-for-profit corporation, would fall into a category by itself which, because of the First Amendment, would be immune from the proposed law.

In addition, NewsManatee already makes arrangements for those for whom the expungement of an arrest record is granted and NewsManatee removes such information in such a case, when requested by the arrested person and/or his/her attorney of record. We charge a $50 service fee for said removal -- why should we bear the cost of time consumed for someone else's mistake, or someone else's decision, such as the state attorney's decision not to prosecute?

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I believe the bill falls very short of its intended goal and will not even pass a committee first reading. 

I further believe that Representative Zimmerman should take classes on the U.S. Constitution before he proposes any more legislation.

That's my opinion.

Michael C. Quinn
Publisher
NewsManatee.com