Maryland House Bill 744


Summary

Maryland House Bill 744 would require anyone who has published online an arrest booking photo for a criminal or traffic charge or suspected violation of a criminal or traffic law to remove it within 30 days upon written request by the person in the image, if the offense can be expunged under Maryland law. A violation is deemed an unfair trade practice.

The bill was amended to limit its application to websites that charge a fee to remove photographs.

Status

Gov. Larry Hogan signed the amended bill into law. It goes into effect October 1, 2015.

Analysis

The legislation forces online publishers to edit or re-write news stories. The First Amendment bars the government from meddling in the editorial decision of publishers or any speakers in this manner.

»  The bill likely fails 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 bill also does not serve the stated interest in protecting the privacy of the person in the photo. The photo can still be published in other media, other than the Internet, and the details of the arrest can still be published online.

»  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.

»  It violates the Commerce Clause.

Furthermore, the Supreme Court has struck down laws that apply content restrictions on the Internet because it violates the Commerce Clause of the Constitution.

History

  • The bill was introduced [2] on February 13, 2015. It was referred to the House Committee on Economic Matters.
  • On February 24, 2015, Media Coalition submitted a legal memo [1] explaining the constitutional issues with the bill.
  • The House Committee on Economic Matters held a hearing on the bill on March 4, 2015. The Committee took no action on the bill.
  • On March 19, 2015, the bill was amended [3] to limit its application to websites that charge a fee to remove arrest photographs. The House Committee on Economic Matters recommended the amended bill be passed.
  • The Maryland House passed the amended bill on March 20, 2015. The bill was sent to the Senate and referred to the Senate Committee on Finance.
  • On April 10, 2015, the Senate Committee on Finance recommended the amended bill be passed. The full Senate passed the bill the following day.
  • Governor Larry Hogan signed the amended bill into law on May 12, 2015. It goes into effect October 1, 2015.

Last updated: Sep 3, 2015