Florida Bill Targets “Mugshot Websites,” Hits Crime Reporting

A new bill proposed by Florida legislator Carl Zimmermann seeks to end “mugshot websites,” a relatively new industry that exploits the marriage of the internet and open records laws in order to make a profit. (See our prior posts on mugshot websites here, here, and here.) But, while ending these sites may be a morally laudable goal, the proposed law is blatantly unconstitutional. Not only would it infringe upon the protected speech of these mugshot websites, it would also stifle a substantial amount of socially beneficial online speech, specifically crime reporting from legitimate news sources.

The proposed law, House Bill (HB) 677, would require “the operator of a website that contains the name and personal information, including any photograph or digital image,” of a person charged with a crime, within 15 days of receiving written notification that the person has been “acquitted or the charges are dropped or otherwise resolved without a conviction,” to remove the person’s name and personal information. Failure to comply would lead to a fine and, after 45 days, “create[] a presumption of defamation of character.” Under HB 677, a website operator may not ask for payment to remove content, but the bill would penalize websites regardless of whether they charged a fee—it targets content, not commercialization.

Mugshot websites—websites that obtain mug shots through freedom of information act requests (including mug shots of people who were never charged), post them online, and remove them only upon payment—have been offending American sensibilities since at least 2011. Unlike many organizations that file FOIA requests and provide the open records to the public, mugshot websites do not seek to provide a public service. Instead, these sites exploit laws created to protect open government and free speech for the same reason they exploit people trying to get their mugshots removed—to make a profit. Even staunch free speech advocates recognize that these mugshot companies are, at the very least, distasteful.

But, of course, the First Amendment does not allow the government to regulate content simply because it is distasteful. In United States v. Stevens, the Supreme Court rejected “a free-floating test for First Amendment coverage based on … balancing of relative social costs and benefits.” Courts have explained that society has to put up with thoughtless, insulting, and outrageous speech in order to “provide adequate breathing room for valuable, robust speech—the kind that enriches the marketplace of ideas, promotes self-government, and contributes to self-determination.” J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 941 (3d Cir. 2011) cert. denied 132 S. Ct. 1097 (U.S. 2012).

Mugshot websites’ smarmy speech sits comfortably in the “breathing room” required by the Constitution. Even accepting the premise that Florida has a real, compelling interest in regulating mugshot websites, HB 677 cannot survive strict scrutiny as outlined in Stevens, because it is not “narrowly tailored.” Government action to “punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Pub. Co., 443 U.S. 97, 102 (1979). And here, “where the government has made [mugshots] publicly available,” it would be “highly anomalous” to sanction a subsequent publisher. The Florida Star v. B.J.F., 491 U.S. 524, 535 (1989). Indeed, when the government is the original publisher, “a less drastic means than punishing truthful publication almost always exists.” Florida Star at 534.

Additionally, HB 677’s “presumption of defamation” would unconstitutionally shift the burdens of proof on issues of falsity and fault which the Supreme Court outlined in cases such as Philadelphia Newspapers v. Hepps and Gertz v. Robert Welch, Inc. The First Amendment does not prevent t