Even as national headlines are dominated by stories based upon illegally gathered information, Alabama continues to pass what appear to be clearly unconstitutional laws criminalizing publication of the most run-of-the-mill criminal records.
This paper has documented for months a 2014 law criminalizing the publication of expunged criminal records that would appear to be an unconstitutional prior restraint. Now we can add to it a law that went into effect at the beginning of August that again seems to clearly violate constitutional protections against government telling the press what it may not cover.
This time the Legislature has outlawed publication of the mugshots of those arrested for prostitution. The law claims photos of those arrested for allegedly practicing the world’s oldest profession are “not public record and may not be published in any printed or electronic media or provided to any person” without an order from a district judge. While no criminal penalty is given for violating this law, critics argue that because it is in the state code it is possible a violation could be considered criminal.
The law’s sponsor, Rep. Jack Williams, R-Birmingham, says the new law attempts to see women arrested for prostitution as victims rather than criminals and he doesn’t want to see them “revictimized.” Williams told the Anniston Star in an interview that the law was a response to the digital environment in which some websites use mugshots of prostitutes to drive traffic, and such photos can live on the web for years, even after someone has changed her life.
While Williams’ heart may be in the right place, he doesn’t appear to understand much about the First Amendment. The courts have consistently held that it is generally not within government’s rights to limit the information media may publish. Certainly we’ve seen the other side of this in recent months as media outlets have published story after story based upon materials that appear to have been illegally hacked from the computers of high-ranking political operatives. No one has suggested publication of such materials is illegal, yet publishing a photo taken by police of someone arrested for a state crime is now itself a crime in Alabama.
Just as in the situation where the state has criminalized publication of expunged criminal records, unconstitutional means are being used to try to keep media outlets from doing something not all that common in the first place. And while issues presented by the web are particularly thorny and a bit of a “new frontier,” these types of prior restraints are treading back over issues long ago settled by the Supreme Court.
Hopefully this will be recognized as an unconstitutional prior restraint and removed from the state law without wasting time and money.
On a related note, I have spoken with members of the Legislature who say they will be looking back at the part of the 2014 expungement law that criminalizes publication of such records. In that particular law, a criminal penalty has been assigned and at least one reporter/blogger has been arrested for publishing a legal document. The lawmakers I’ve spoken with said they see the point that such a ban is unconstitutional and should be repealed. We’ll see how it goes in the next session.