Summary
Alabama House Bill 8 would require online publishers to remove an arrest booking photo within 30 days of written request by the person in the image if that person was not convicted, if access to the information about the case was restricted or if the person was convicted under certain circumstances.
Failure to remove the photo would be considered a deceptive trade practice.
Status
The Alabama legislature adjourned its 2015 session. It does not carry over bills to 2016, so the bill is dead.
Analysis
» The bill is a content-based restriction, so it must satisfy the strict scrutiny test. It is likely that it fails that test.
Arrest photos do not fit any of the categorical exceptions to the First Amendment, so the legislation must satisfy strict constitutional scrutiny. It is unlikely that this bill meets the strict scrutiny test.
The first part of the strict scrutiny test is that the government must articulate a legitimate and compelling state interest. Though privacy is an important right, the Supreme Court has held that it is not a sufficiently compelling interest to overcome the First Amendment right to free speech.
The legislation also does not serve that stated interest because the bill only limits a photo’s publication on the Internet, and not on other media.
» Punishing a single media is likely unconstitutional.
In addition to failing the strict scrutiny test, the legislation treats photos published on the Internet differently from ones published in other media. The Supreme Court has allowed media to be treated differently in some contexts but not where the different treatment is based on the content of the speech.
History
- The bill was prefiled [2] on January 15, 2015.
- On February 26, 2015, Media Coalition submitted a legal memo [1] explaining the constitutional issues with the bill.
- The bill was referred to the House Committee on Judiciary on March 3, 2015.
- The Alabama legislature adjourned its 2015 session. It does not carry over bills to 2016, so the bill is dead.