It’s Sunshine Week—but some states have a funny way of celebrating

(AP Photo/Heribert Proepper)

We’re in the middle of Sunshine Week–an annual celebration of the importance of open government and freedom of information. But as state lawmakers gather for their spring sessions around the country, the sunshine spirit is stronger in some places than others.

From South Carolina to Texas and California, lawmakers are busy drafting and debating bills that impose new burdens on media outlets that report on crime, and, depending on the state, make it more or less difficult for citizens to record police activity. These are not strictly FOI bills, but they broadly implicate press freedom and the public’s right to know—and they should be on your radar.

Let’s begin with a bill that runs afoul of a unanimous US Supreme Court decision:

In South Carolina, state Sen. Paul Thurmond, R-Charleston, son of the late Strom Thurmond, is pushing a bill that would amend a state law requiring government agencies to dispose of a person’s arrest records, including mug shots, if the person is found not guilty or if the charges are dismissed or the records expunged.

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The bill would expand that scheme by focusing on non-governmental websites that publish mug shots. It would require those sites to remove a mug shot upon request if the conditions above are met, and also to correct “any published information” if the person pleads to a lesser offense and the original charges are dismissed.

That means if we relived the O.J. Simpson trial in South Carolina, any news organization that reported on his murder charges would have to revise, eventually, every related story to note Simpson’s acquittal—and upon his request the organizations would have to remove his mug shot wherever it appeared on their sites, including the archives.

The penalty is a fine of up to $500 or 30 days in prison, or both.

The bill is in the Senate Judiciary Committee, and a vote Tuesday was delayed because of disagreements over the bill’s application to the media. The South Carolina Press Association has raised the bill’s First Amendment problems and proposed an exemption for the media, but Thurmond hasn’t come around.

He told The Post and Courier of Charleston that the bill’s requirements are analogous to the corrections that newspapers run themselves, adding, “I think [the news media] have an obligation to update [their stories] appropriately. Why is that unreasonable?”

I’ve written before about bills proliferating around the country that target the practice of posting online a mug shot obtained from a government agency in order to solicit money for the mug shot’s removal.

That’s a disreputable practice—but some of the bills addressing it are more offensive to press freedom than others, and this one is highly offensive, at least as envisioned by Thurmond. He told The Post and Courier that the bill is supposed to target sites like Mugshots.com, which charge hundreds of dollars per photo for removal, but his bill fails to distinguish commercial and other uses, including news reporting.

That means the bill is overbroad. It regulates more than is necessary to achieve its ends.

Further, the bill is inconsistent with the 1974 case Miami Herald Publishing v. Tornillo, in which the US Supreme Court ruled unanimously that:

  • “A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”
  • “Governmental compulsion on a newspaper to publish that which ‘reason’ tells it should not be published is unconstitutional.”
  • “The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press.”

That’s the saving grace here: Even if Thurmond’s bill is passed with no exemption for the news media, under clear Supreme Court precedent there’s zero chance the relevant provisions could be enforced.

A responsible press is an undoubtedly desirable goal, but… like many other virtues it cannot be legislated.

In Texas, state Rep. Jason Villalba, R-Dallas, last week introduced a bill to make it a crime for citizens to film, record, photograph, or document a police officer within 25 feet of the officer while he or she “is performing a duty or exercising authority.” The bill exempts people working for the “news media,” which it narrowly defines as radio, television, newspaper, and magazine outlets.

Villalba has rejected claims that his bill criminalizes recording the police in general. “My bill does no such thing,” he tweeted. “Just asks filmers to stand back a little so as not to interfere with law enforcement.”

Despite that claim to reasonableness, this bill is also asking for constitutional trouble. As I’ve written in the context of the Ferguson protests, no less than the US Department of Justice has asserted—multiple times—that citizens have a First Amendment right to record police activity. And federal appeals courts have agreed. In the 2011 case Glik v. Cunniffe, the First Circuit said recording the police promotes the discussion of public affairs and “aids in the uncovering of abuses,” and that the police “are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.”

It’s true that the right is not absolute—it’s subject to time, place, and manner restrictions. For example, an officer could close an accident scene for safety reasons and thereby restrict the public’s ability to record police activity.

The 25-foot rule might operate as a place or manner restriction, but the courts have held consistently that police officers may order citizens to stop recording only if the recording is truly interfering with police activities. With that in mind, consider the bizarre results the 25-foot restriction could cause:

  • A citizen records a traffic stop from 30 feet away, and all of a sudden the officer rapidly approaches the citizen, who now finds herself less than 25 feet from the officer. She would have to stop recording immediately.
  • A citizen records an officer as he arrests a man for shoplifting. The man resists and the officer beats him using a baton, continuing long after the man is subdued. The citizen steps around a retaining wall to get a good view, putting her less than 25 feet away. She is not interrupting, disrupting, impeding, or interfering with the officer’s arrest—but she could be arrested and prosecuted simply because she is too close.

Fortunately, Villalba’s bill stands in contrast to bills under consideration in other states that would clarify and uphold the rights of the public to record police.

In California, state Sen. Ricardo Lara, D-Bell Gardens, recently introduced a bill to clarify that recording a police officer in the course of his or her duties generally does not constitute obstruction of the officer. The bill also states that such recording does not, in and of itself, constitute reasonable suspicion to detain someone or probable cause to arrest someone.

Similarly, in Colorado, as part of a bipartisan package of 10 bills related to law enforcement, state Reps. Joe Salazar, D-Thornton, and Daneya Esgar, D-Pueblo, introduced a bill that would allow a citizen to file a civil lawsuit against a law enforcement agency—with damages up to $15,000—if a police officer seized or destroyed a recording, or if an officer interfered with a recording or retaliated against a citizen for making it.

“A police officer may ask a citizen to step back,” Esgar told the Colorado Freedom of Information Coalition. “But a police officer may not ask a citizen to turn off their cell phone camera.”

That’s true, and the first part of that statement is critical, because it highlights the problem with Villalba’s proposal in Texas. The best practice, which presents fewer constitutional problems, is for a police officer to order a citizen who is recording to step back based on specific conditions—not to require citizens who are recording to remain 25 feet from an officer regardless of circumstances.

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Jonathan Peters is CJR’s press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. 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.