The Oklahoma City Republican is a strong supporter of open government. But I am concerned about the unintended consequences of this bill.
The bill’s language doesn’t say “intent.”
Under the bill, publishing online even the “personal photograph” of a police officer would be a misdemeanor “if the dissemination of the personal information poses an imminent and serious threat to the law enforcement official’s safety or the safety of the law enforcement official’s immediate family and the person making the information available on the internet knows or reasonably should know of the imminent and serious threat.”
So here goes a hypothetical: Along with a story, the local newspaper publishes online a photo of a police officer who shot an unarmed suspect. The community is furious with the police. In a public place, someone recognizes the officer from the photo and assaults him.
Is the newspaper liable under this bill? Would a prosecutor contend that publishing the photo violated the law because the editor should have known that it would pose an “imminent and serious threat” to the officer?
On Twitter, Holt [@davidfholt] indicated the First Amendment would protect the media in that situation because it wouldn’t be an imminent threat.
That essentially is invoking the Brandenburg test that courts use to determine if speech is too inflammatory: No First Amendment protection for speech directed to inciting imminent lawless action and likely to cause such action.
Holt said the “imminent” standard provides a high-degree of protection for speech. I agree. But I don’t think the language in SB 620 provides that kind of protection.
It holds news media responsible for publishing a fact about a law enforcement official if the editors and producers should have known it would pose “an imminent and serious threat.” The media don’t have to intend to incite the violence or even make the threat.
Existing laws already allow everyone to sue for intrusion and for the publication of private and embarrassing facts about them. But SB 620 punishes the publication of publicly available and non-embarrassing facts about a particular category of people.
Holt said the same law proposed by SB 620 is on the books in Colorado. He said the legislation’s application would be limited. He hope he’s right.
I guess any news media prosecuted for a violation would have to argue in court that it was protected by the Brandenburg test.
But another point on which Holt and I disagree is who’ll be next to ask for a similar statute. Holt said he doesn’t subscribe to the slippery slope theory and that protections for other groups would have to pass on their own merit.
I expect judges, district attorneys, city clerks and lots of other government officials to be lobbying for their own special statutes if SB 620 passes.
The bill already has been referred to the Senate’s Public Safety Committee.
Joey Senat, Ph.D.
OSU School of Media & Strategic Communications
Mass Communication Law in Oklahoma