Hawaii House Bill 529


Summary

Hawaii House Bill 529 would require online publishers to remove an arrest booking photo within 30 days upon 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.

Status

The Hawaii legislature has adjourned for the 2015 session. It carries over legislation to 2016, so the bill may be taken up again next year.

Analysis

»  Privacy is not a sufficiently compelling interest to overcome the First Amendment. 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 Court has often struck down laws and vacated court orders that barred speech about a criminal proceeding in order to protect a defendant’s privacy. Furthermore, the legislation 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. 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 introduced [2] on January 26, 2015. It was referred to the House Committee on Judiciary.
  • On February 6, 2015, Media Coalition submitted a legal memo [1] explaining the constitutional issues with the bill.
  • On February 11, 2015, the House Committee on Judiciary held a hearing on the bill. The committee recommended the bill be passed, with an amendment [3]. The amended bill still requires any online publisher to remove a photo upon request.
  • The Hawaii legislature adjourned its 2015 session. It carries over bills to 2016, so the bill may be taken up again next year.

Last updated: Sep 3, 2015