Summary
South Carolina Senate Bill 255 would require any website to remove arrest and booking records within 30 days of written request by the person to which the information refers, if that person was not convicted. If the person is convicted of a lesser offense, the website must change any published information to reflect the reduced charged and remove any reference to the original charge.
Arrest and booking information includes booking photos, date of birth, date of arrest and the name of the arresting law enforcement agency. A violation is subject to a $500 fine, 30 days in jail or both. The publisher is also subject to a civil cause of action.
The bill was amended to create an exception for newspapers, radio and TV broadcast, movies, books and periodicals.
Status
The South Carolina legislature adjourned its 2015 session. It carries over bills to 2016, so the bill may be taken up again next year.
Analysis
Similar to other arrest photo bills, this legislation asks publishers to erase or alter history by scrubbing their published stories. Important historical events would be rewritten if a law such as this was in place. There are also many reasons this violates the First Amendment:
» It likely fails the strict scrutiny test.
The Supreme Court has held that all speech is presumptively protected by the First Amendment against content-based regulation, subject only to specific historical exceptions. Arrest information does not fit one of these historic exceptions to the First Amendment.
Any content-based regulation that does not fit into a historic exception to the First Amendment must satisfy strict constitutional scrutiny. The legislation fails the first part of the strict scrutiny test because privacy is not a sufficiently compelling interest to overcome First Amendment protection. It fails the second part of the test because the legislation does not serve the stated interest in protecting the privacy of the person to which the arrest information refers, because it only limits publication online.
» Punishing a single media is likely unconstitutional.
The differential treatment of online publishers is likely unconstitutional. 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 13, 2015. It was referred to the Senate Committee on Judiciary.
- On February 16, 2015, Media Coalition submitted a legal memo [1] explaining the constitutional issues with the bill.
- On February 17, 2015, the Senate Committee on Judiciary held a hearing on the bill.
- On March 25, 2015, the bill was amended [3] to include an exception for media organizations. The Senate Committee on Judiciary recommended the amended bill be passed.
- The Senate passed the amended bill on April 16, 2015, and sent it to the House for consideration. The amended bill was referred to the House Committee on Judiciary.
- The House Committee on Judiciary made amendments to the bill, unrelated to the arrest records takedown provision. It recommended the bill be passed.
- On June 3, 2015 the House made amendments to the bill unrelated to the takedown provision. It passed the bill and sent it back to the Senate with amendments.
- The Senate voted not to concur with the House amendments. The House and the Senate appointed members to a conference committee.
- The South Carolina legislature adjourned its 2015 session. It carries over bills to 2016, so the bill may be taken up again next year.