In the 1932 case New State Ice Co. v. Liebmann, Justice Louis Brandeis dissented from the US Supreme Court’s decision that Oklahoma could not regulate an ice business as a public utility. Brandeis said states must have the power to reshape industries and institutions to meet changing social needs, noting that it’s “one of the happy incidents of the federal system that a single courageous State may … serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” And so was born an enduring metaphor describing the relationship between the state and federal governments.
Every year, the states propose or pass thousands of bills affecting land use, criminal procedure, banking, education, voting, and so on. The bills grow out of lobbying and grassroots efforts to protect or restrict certain interests—and, yes, to meet changing social needs. Some bills die in committee. Some on the floor. Others are vetoed. A relatively few pass—and of the ones that pass, some prove effective and others don’t.
The same goes for bills that implicate press freedom. Every year, the states propose or pass hundreds of measures affecting privacy rights, access to public records and meetings, defamation remedies, privilege claims, and so on. In general, they represent the states’ attempts to reshape the news ecosystem and the free flow of information about public affairs.
This is the first in an occasional series of articles highlighting state bills that implicate press freedom and calling attention to states in their roles as laboratories of legislative experiments. In each installment, I’ll note and briefly analyze a few bills. I’m not trying to be exhaustive in the bills I note or in my analysis. My goal is simply to point readers toward some bills, either enacted or pending, that are worthy of attention (and if you’ve got suggestions, drop me a note or a tweet).
So, without further ado…
Police shootings without public fingerprints
In Missouri, state representative Jeff Roorda (D-Jefferson) has introduced a bill to amend the Sunshine Law by closing certain records related to law enforcement. (Roorda, by the way, is the business manager of the St. Louis Police Officers Association.) The new language says that generally a Missouri governmental body may close, among other things:
Any records and documents pertaining to police shootings … if they contain the name of any officer who did the shooting, unless the officer who did the shooting has been charged with a crime as a result of the shooting, in which case such records or documents shall not be closed.
No law enforcement agency shall disclose the name of any officer who was the shooter or one of the shooters involved in a police shooting … unless such officer has been charged with a crime as a result of the shooting.
The bill defines “police shooting” as “any incident in which an individual is shot by a law enforcement officer regardless of whether the … officer was on duty.” It goes on to say that in Missouri a law enforcement agency is required to maintain records of all incidents reported to it, as well as records of all investigations and arrests made by the agency—“unless those incident reports or arrest reports involve a police shooting … in which case such reports shall be closed if they contain the name of any … officer who was a shooter …, except that the … reports shall be open if the name of the shooting officer is redacted or the shooting officer has been charged with a crime.”
In other words: If this bill became law, and I were an off-duty police officer in Missouri and I shot someone in the course of a confrontation, and I was not charged for it, then the Post-Dispatch basically would be high and dry in accessing records about the incident. Related records containing my name would be closed or redacted, and no agency could disclose my name. That means I’d be able as a police officer, privileged by the state to use lethal force, to discharge my firearm in public—to shoot someone—without leaving public fingerprints.
That’s an incredibly dangerous idea for reasons so obvious I hesitate to mention them. But I will, because Roorda apparently needs to hear them. As the legal scholar Vincent Blasi once wrote, “The abuse of official power is an especially serious evil because of government’s unique capacity to employ legitimized violence.” That means, he said, the “check on government must come from the power of public opinion,” informed partly by the press. The value of access to police shooting records is to allow people to determine and speak out when the government abuses its power. Roorda’s bill would make it difficult to do so.
Fortunately, the measure appears to be gaining little traction. Yes, it’s got five co-sponsors (four Ds and one R), but it was referred January 29 to the General Laws Committee of the Missouri House, and there it sits today.
That it’s unlikely to pass does not make it unworthy of attention. For one, judging the merits of all manner of bills, including those unlikely to pass, can reveal the different sides of various issues; and two, it can provide a fuller accounting of the states’ legislative experimentation and attempts to reshape the news ecosystem.
At any rate, I hope the angels soon carry away Roorda’s bill.
When to worry about mug shot laws
Two days ago, a committee of the California State Senate voted to pass a bill restricting the commercial use of mug shots. Introduced by Jerry Hill (D-San Mateo), the bill targets the practice of posting online a mug shot obtained from a law enforcement agency in order to solicit money for the mug shot’s removal (yes, this is a thing). In short, the bill creates a private right of action—meaning people can sue in civil court—for any violation, and authorizes penalties up to $1,000 or actual damages, whichever is greater, plus court costs and attorney’s fees.
Currently in California, whether to disclose mug shots as public records is up to the discretion of local law enforcement. Hill’s measure enters that space with the stated goal of protecting a vulnerable population (arrestees and convicts) from exploitation—it’s designed to impede the profitability of the business model that makes the exploitation possible. To be clear, if the bill passes (I bet it will), it does not affect the ability of law enforcement agencies to retain or release mug shots. It just grants individuals a right of action to sue private website operators who demand or accept money to remove them.
But mug shot regulation has proliferated around the country—seven states have passed laws since last year, and 14 states had measures introduced or pending in 2014. And in some forms, these measures can pose an acute threat to press freedom. Jillian Stonecipher of Harvard’s Digital Media Law Project detailed one such proposal for Nieman Journalism Lab in 2013.
In that case, Florida state representative Carl Zimmermann (D-Palm Harbor), a high school journalism teacher, introduced a bill requiring 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 to remove that person’s information within 15 days of receiving written notice that the person was “acquitted or the charges are dropped or otherwise resolved without a conviction.” Non-compliance would result in a fine and would create, after 45 days, “a presumption of defamation of character.” Moreover, the bill targeted websites regardless of whether they charged fees, focusing on content rather than commercialization.
As Stonecipher concluded, the bill was plainly unconstitutional. “Not only would it infringe upon the protected speech of these mug shot websites,” she said, “it would also stifle a substantial amount of socially beneficial online speech, specifically crime reporting from legitimate news sources.” And think about what would have happened if it had become law.
News organizations—as operators of websites containing “the name and personal information, including any photograph or digital image,” of numerous people charged with crimes—would have had to remove content whenever a subject was “acquitted or the charges…dropped or otherwise resolved without a conviction.” For example, The Miami Herald could have been penalized if it refused to take down mug shots of Casey Anthony—because she was acquitted. Small local papers could have been required to scrub police blotter reports posted online. Journalists could have been put in the position of altering the historical record.
Fortunately, Zimmermann’s colleagues may have recognized these concerns; the bill died in committee, as Roorda’s proposal in Missouri seems poised to do. But mug shots bills are many and varied—and no matter how well-intentioned they are, it’s worth taking a close look at the issues they raise. Stay tuned for more on that in this space. And stay tuned for the next article, come July, in this series—calling attention to states in their roles as laboratories of legislative experiments that implicate press freedom.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.