Summary
Minnesota House Bill 1940 would require any publisher to remove an arrest photo upon request if the person in the photo was not convicted. If the person in the photo was convicted, the publisher must limit the information about the picture to the person’s first name, last initial and crime of conviction.
The legislation also requires any publisher who seeks access to an arrest photo to explain how the image will be used and every location it will appear. Any re-publisher who receives the image from a publisher who obtained the picture from the state must also file this information.
H.B. 1940 would not require that the person requesting that the information be removed live in Minnesota nor does the website subject to the request to take down the information need to be located in the state.
It is companion to S.B. 1863.
Status
The bill is dead as a standalone bill.
Analysis
Arrest photo legislation allows O.J. Simpson or Lee Harvey Oswald’s estate to request any website to take down any personal information or images about them. States cannot impose control over the editorial content of publishers, and this legislation does so by requiring publishers to limit information associated with an arrest photo to the person’s first name, last initial and the crime charged.
The bill does not fit into one of the historic exceptions to the First Amendment, so it must satisfy strict constitutional scrutiny. The first part of the test requires the government to articulate a legitimate and compelling state interest. Though privacy is an important right, the Supreme Court has ruled that it is not sufficient to overcome the right of free speech. The second part of the test requires the government to prove that the speech restriction serves that interest. But an arrest photo cannot be removed from a book or documentary film, so the legislation is intended to apply to only online publication. The bill then fails to accomplish the state interest in preserving privacy, because the same information could still be published in other medium or with another picture.
The legislation does not require that the person requesting that the information be removed live in Minnesota nor does the website subject to the removal request need to be located in the state. This violates the Commerce Clause, because it gives Minnesota power over publishers in other states.
History
- The bill was introduced [2] on February 25, 2014 and referred to the House Committee on Civil Law.
- Media Coalition sent a letter [1] to Rep. John Lesch, Chairman of the House Committee on Civil Law, explaining the constitutional issues with the bill.
- The House Committee on Civil Law recommended the bill be passed. It is re-referred to the House Committee on Public Safety Finance and Policy.
- The House Committee on Public Safety Finance and Policy amended [3] the bill to include an exemption for a “bona fide news organization or producer of news features.” The committee recommended the bill be passed as amended.
- The bill is dead as a standalone bill.
Last updated: