A new bill proposed by Florida legislator Carl Zimmermann seeks to end “mugshot websites,” a relatively new industry that exploits the marriage of the internet and open records laws in order to make a profit. (See our prior posts on mugshot websites here, here, and here.) But, while ending these sites may be a morally laudable goal, the proposed law is blatantly unconstitutional. Not only would it infringe upon the protected speech of these mugshot websites, it would also stifle a substantial amount of socially beneficial online speech, specifically crime reporting from legitimate news sources.

The proposed law, House Bill (HB) 677, would require “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, within 15 days of receiving written notification that the person has been “acquitted or the charges are dropped or otherwise resolved without a conviction,” to remove the person’s name and personal information. Failure to comply would lead to a fine and, after 45 days, “create[] a presumption of defamation of character.” Under HB 677, a website operator may not ask for payment to remove content, but the bill would penalize websites regardless of whether they charged a fee—it targets content, not commercialization.

Mugshot websites—websites that obtain mug shots through freedom of information act requests (including mug shots of people who were never charged), post them online, and remove them only upon payment—have been offending American sensibilities since at least 2011. Unlike many organizations that file FOIA requests and provide the open records to the public, mugshot websites do not seek to provide a public service. Instead, these sites exploit laws created to protect open government and free speech for the same reason they exploit people trying to get their mugshots removed—to make a profit. Even staunch free speech advocates recognize that these mugshot companies are, at the very least, distasteful.

But, of course, the First Amendment does not allow the government to regulate content simply because it is distasteful. In United States v. Stevens, the Supreme Court rejected “a free-floating test for First Amendment coverage based on … balancing of relative social costs and benefits.” Courts have explained that society has to put up with thoughtless, insulting, and outrageous speech in order to “provide adequate breathing room for valuable, robust speech—the kind that enriches the marketplace of ideas, promotes self-government, and contributes to self-determination.” J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 941 (3d Cir. 2011) cert. denied 132 S. Ct. 1097 (U.S. 2012).

Mugshot websites’ smarmy speech sits comfortably in the “breathing room” required by the Constitution. Even accepting the premise that Florida has a real, compelling interest in regulating mugshot websites, HB 677 cannot survive strict scrutiny as outlined in Stevens, because it is not “narrowly tailored.” Government action to “punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Pub. Co., 443 U.S. 97, 102 (1979). And here, “where the government has made [mugshots] publicly available,” it would be “highly anomalous” to sanction a subsequent publisher. The Florida Star v. B.J.F., 491 U.S. 524, 535 (1989). Indeed, when the government is the original publisher, “a less drastic means than punishing truthful publication almost always exists.” Florida Star at 534.

Additionally, HB 677’s “presumption of defamation” would unconstitutionally shift the burdens of proof on issues of falsity and fault which the Supreme Court outlined in cases such as Philadelphia Newspapers v. Hepps and Gertz v. Robert Welch, Inc. The First Amendment does not prevent the government from punishing defamation, but it does require the party alleging defamation to provide evidence that a statement is not true. In Hepps, the Court held that it is “a constitutional requirement that the plaintiff bear the burden of showing falsity.” As the Court explained in Gertz, allowing publishers “to avoid liability only by proving the truth of all injurious statements [would] not accord adequate protection to First Amendment liberties.”

While mugshots could arguably constitute defamation if they are used to convey the false impression that someone who had merely been arrested had actually been convicted, the plaintiff must bear the burden of proving that defamation. In other words, there can be no “presumption of defamation” under the Constitution.

The bill is also unconstitutionally overbroad—and particularly disturbing–because of the large amount of productive speech it would penalize. Journalists are currently working to maintain their right to keep content online in the face of ever more common requests to “unpublish,” or remove content. HB 677 would eliminate that right. As operators of websites containing “the name and personal information, including any photograph or digital image,” of numerous people charged with crimes, news sources would be forced to remove content any time a subject was “acquitted or the charges … dropped or otherwise resolved without a conviction.” The bill also appears to apply to legal databases like Westlaw and LexisNexis, which store records of arrests and legal proceedings. Under the plain language of the statute, news providers would be subject to fines for every day they left stories on prominent criminal prosecutions on their websites. For example, the New York Times, the Washington Post, and the Miami Herald would all be penalized if they refused to take down stories documenting the Casey Anthony trial. After all, she was acquitted.

In recent years, news organizations that publish content online have received more and more unpublishing requests. As people realize that their youthful transgressions, embarrassing public circumstances, and unpopular stances, once recorded, are “Googleable” forever, there is mounting public pressure for journalists to remove content or alter it to protect subjects’ identities. In fact, similar concerns about the permanency of online data prompted the European Union to create a “right to be forgotten” last year.

Journalists in the United States, however, rarely comply with unpublishing requests, because they conflict with journalistic values of accuracy, accountability, and transparency. Both the New York Times and the Washington Post have policies establishing that they generally do not unpublish accurate articles.

As Kathy English, the public editor of the Toronto Star, has written, “to simply remove published content from the archive diminishes transparency and trust with … readers and, in effect, erases history. This is not a practice engaged in by credible news organizations or in line with ethical journalism.” This is, she states, “an issue of integrity and credibility and reflects [journalists’] sense of responsibility to [their] readers, [their] community, and the historical record.”

Kelly McBride, from Poynter, has also stated that unpublishing should occur “only in extreme cases,” because unpublishing has “a destabilizing effect on the audience, which will place less trust in other information that you publish. If stuff just disappears, without a thorough explanation, people get very suspicious. So ultimately it's bad for democracy and citizen participation in the marketplace of ideas.”

However, journalists have acknowledged that tough cases arise. For instance, many community papers publish police blotters and do not routinely follow-up on acquittals or dropped charges. This troubles many journalists, especially when subjects were minors at the time of arrest. Journalists have handled these situations in different ways. For example, many sites will update original articles to note that the person was never charged. According to a report by Kathy English (see p. 5), GateHouse Media at one point considered instituting a “sunset” policy pilot project under which the company would remove police blotter reports from the organization’s online archives six months after publication; the company's current ethics guide on covering crime does not mention this policy, but prohibits posting police blotters online and states:

If someone is concerned about his/her arrest record coming up in a search engine, particularly because the charges in question have been dismissed or a court has found the person not guilty, he/she should provide the editor of the posting publication with copies of court documents describing the disposition. The editor will then add that disposition to the posted story.

However, news and information posted to the Web should come down when threats to life and limb are at stake, or in cases of identity theft.

Regardless of the way journalists choose to address these often-difficult situations, this is a question of journalistic ethics. It is not an appropriate place for government intervention. As the Supreme Court held in Miami Herald Publishing Company v. Tornillo, “[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.”

While some speakers may capitalize on open government and free speech laws, those laws preserve all citizens’ rights to speak freely and access accurate information about the world around them. If mugshot websites are so egregious that they truly demand state intervention—which seems unlikely—the state must tread carefully in finding ways to regulate them. Instead, HB 677 would casually stamp out a substantial amount of reporting and require journalists to alter the historical record.

Jillian Stonecipher is 2L at Harvard Law School and an intern at the Digital Media Law Project. She served as Editor-in-Chief of the Daily Texan at the University of Texas  from 2009-2010.