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Prohibiting Publication of Others' Photos?

The California legislature is now considering AB 2296, which is aimed at protecting researchers against animal rights terrorism. I certainly support the researchers generally — my own colleagues here at UCLA have been victims of vandalism and arson at their homes — but one provision strikes me as clearly unconstitutional:

No person, business, or association shall publicly post or publicly display on the Internet a home address, home telephone number, or image of any employee of an animal enterprise if that individual has made a written demand of that person, business, or association to not disclose his or her home address or home telephone number. A demand made under this paragraph shall include a sworn statement declaring that the person is subject to the protection of this section and describing a reasonable fear for the safety of that individual or of any person residing at the individual's home address, based on a violation of subdivision (a). A written demand made under this paragraph shall be effective for four years, regardless of whether or not the individual's affiliation with an animal enterprise has expired prior to the end of the four-year period.

This is a classic attempt to restrict what I call Crime-Facilitating Speech: Speech that conveys information that helps people commit a crime. The trouble is that, as with many such restrictions, the law punishes valuable speech and valuable uses of the speech as well as trying to prevent the criminal uses.

For instance, this provision bars the display of any photograph ("image" is defined to include photographs) of any animal enterprise employee who has been threatened and who makes the required demand. A newspaper would thus not be allowed to publish on its Web site a photograph of the CEO of a food company or a circus, or of a scientist who is engaged in animal research. A television program's site wouldn't be able to show footage including the person's image (unless it's deliberately blurred). That will cover both critical commentary and ordinary illustration of news stories in which the person plays a role.

Likewise, Web sites will likely have to remove or blur the person's photos that had already been posted on the site, since any continued display of the pictures would violate the "public[] display" ban. Newspaper and Internet archives would have to be suitably edited. These might not be deliberate effects of the bill, but that's what the bill would likely do as currently written.

Of course the law would also affect otherwise constitutionally protected anti-animal-enterprise criticism. For instance, publicizing a person's supposed misdeeds in a way that is aimed to shame them before prospective business partners, colleagues, and neighbors is generally constitutionally protected (see, e.g., Organization for a Better Austin v. Keefe and NAACP v. Claiborne Hardware Co.). That has not been uncommon in labor-related speech, civil-rights-related speech, and the like; and it's been constitutionally protected even when the identification of a person was made at a time when there had been some violent attacks against similar people (as in Claiborne). None of these cases involved photos, but their logic suggests that they would indeed apply to identifying people by photo as well as by name (Claiborne, for instance, arose in a fairly small community in which people likely knew what faces the names went with). Yet this law would ban such attempts to use social ostracism as a political tool (again, something that Claiborne expressly and unanimously held to be constitutionally protected).

Even publishing home addresses can have constitutional value: Though cities may ban residential picketing, the State of California hasn't banned it, and I take it that many cities haven't, either — in those cities, targeted picketing is a legal form of protest. And even if focused residential picketing is banned by a city ordinance, parading through the targets' neighborhood is constitutionally protected.

So it's pretty clear that this sort of restriction does prohibit speech that has valuable uses, not just criminal uses. What's more, this could of course easily be extended beyond threats to "animal enterprise" employees, and would cover a wide range of people who reasonably fear criminal attack — crime witnesses, police officers, other government officials, and many more. And of course it could easily be extended to other media besides the Internet. The right to show people's images in news coverage, public debate, or historical archives would be dramatically affected.

One can still argue that the law is constitutionally permissible despite that, because the need to protect against crime is so great that it justifies suppressing even the valuable communication. I argue against that view in detail here and, in more detail, here. But in this post, I just wanted to highlight how broad (whether deliberately or not) the speech restriction would end up being.

The other provisions of the proposal are more defensible, because they limit themselves to constitutionally unprotected threats and incitement (though even they might be vulnerable to an R.A.V. v. City of St. Paul challenge, because they single out threats and incitement aimed at animal enterprise employees). But this one strikes me as quite troublesome.

Related Posts (on one page):

  1. California Bill Aimed at Protecting Animal Researchers:
  2. Prohibiting Publication of Others' Photos?
cjwynes (mail):
Here in Missouri we had a statute preventing the publication of the name of the doctor who administered the drug protocol for lethal injections. The St. Louis newspaper took it to the state Supreme Court and got the law overturned. This law seems somewhat similar to that one in purpose, and would likely be opposed for the same reasons, I wonder if the reasoning in our case would apply to this law too.
4.8.2008 4:15pm
Tony Tutins (mail):
Laws like this will make people block all address, telephone number, and image information from the Internet, as my county assessor's web page reminds me every time I access it:

California Government Code 6254.21 states that "No state or local agency shall post the home address or telephone number of any elected or appointed official on the Internet without first obtaining the written permission of that individual." As the cost to collect and continuously update that information is prohibitive, the On-Line Property Assessment Information System does not display the Assessee name information.
4.8.2008 4:34pm
hattio1:
Just a quick quibble with your interpretation of the law Professor Volokh. You state that it would prevent legitimate news organizations from printing images etc. But according to the law the person has to make a written demand of each specific person business or organization in order to prevent them from printing (well, in order to make it unlawful). So, just because Joe Animal Researcher sends PETA a request to quit printing his image etc would not prevent Reuters from doing a story on Joe A. Researcher.
4.8.2008 4:39pm
DrGrishka (mail):
Didn't the Ninth Circuit rule on this (erroneously in my view) in Planned Parenthood of Columbia/Willamette, et al. v. American Coalition of Life Activists (ACLA), et al. (holding that a website can be enjoined from publishing abortion-providers' names and addresses)?
4.8.2008 5:03pm
Eugene Volokh (www):
hattio1: But if Joe Animal Researcher is really worried about his photo being available, he can make this demand of Reuters, the home-town newspaper, any Web site, and so on.
4.8.2008 5:48pm
Mike G in Corvallis (mail):
hattio1: But if Joe Animal Researcher is really worried about his photo being available, he can make this demand of Reuters, the home-town newspaper, any Web site, and so on.

And what about links? The Animal Liberation Front might be enjoined from putting up a researcher's photograph, but what if they simply said, "To see a picture of this horrible person, go to the Reuters website at www.reuters.com/evilpics/nastyguy.jpg"?
4.8.2008 6:14pm
martinned (mail) (www):
L.S.,

This kind of thing is always fascinating for foreigners. (To be clear, I have little doubt that prof. Volokh's legal analysis is correct.) Over here, as a matter of voluntary pact between media rather than law, newspapers, TV stations, etc. do not publish the last names of criminals, convicted or not (they write Mohammed B. instead of Mohammed Bouyeri for the guy that killed Theo van Gogh), and they generally put a black bar over the eyes of the criminal for pictures. As far as I know, though, this is not based on any legal requirement, and if parliament tried to enact such a law it would probably run afoul of constitutional free speech protection here as well. Still...
4.8.2008 6:16pm
hattio1:
Martinned,
I'm curious, where is over here? I've always wondered why the AC/DC cover of Dirty Deeds had black bars over everyone's faces. Now it makes sense in relation to the song, and especially its intro.

Professor Volokh,
Obvioulsy Joe A. Researcher could prevent all from printing his photo etc, by notifying everyone. I understood your post to be claiming that once they notified someone NO organization could print a photo, etc. As an aside, I think it is very unlikely that your average reasearcher for example would notify everyone in a blanket way. I think it's even less likely for the Circus Promoter who depends on the public knowing they are in town (though I guess the CEO is not necessarily the promoter).
4.8.2008 6:30pm
Smokey:
If they really believe that "...the need to protect against crime is so great...", then that's a pretty good argument in favor of shall-issue concealed carry permits -- rather than hiding behind another nanny state law to appease the frightened.
4.8.2008 6:34pm
martinned (mail) (www):
L.S.,

@hattio1: I'm not sure about Australia, I think they follow the British custom of, ahum, utter absence of any restraint whatsoever. (Although Angus Young does live on a farm not far from where I'm typing this.) "Over here" is the Netherlands. (Where weed and prostitution are legal, but the kind of approach used by the activists mentioned here would probably run afoul of privacy laws.) Other continental European countries tend to respect the privacy of criminals, especially if they aren't convicted yet, less than my compatriots but more than english speaking countries.
4.8.2008 7:00pm
hattio1:
Martinned,
Damn, I'll have to come up with another theory.
4.8.2008 7:13pm
Paul McKaskle (mail):
DrGrishka is right. Planned Parenthood v. American Coalition of Life Activists, 290 F3d. 1058 (9th Cir en banc 2002), is a case where six of the eleven judges deciding the case held that the act of publishing the names and home addresses of doctors who performed abortions was "imminent lawless activity" (because there had been murders of other abortion providers in other parts of the country after their home addresses were published) and five held that it was fully protected by the First Amendment (because there was no showing made that these particular defendants intended to engage in any unlawful acts, hence there was no "imminent" threat of illegal activity). The five dissenters included two of the most conservative members of the 9th circuit, two of the most liberal (including Stephen Reinhardt) and maverick Alex Kozinzki.
4.8.2008 8:44pm
EKGlen (mail):

No person, business, or association shall publicly post or publicly display on the Internet a home address, home telephone number, or image of any employee of an animal enterprise if that individual has made a written demand of that person, business, or association to not disclose his or her home address or home telephone number.

Whatever it is, it is poorly drafted.

Note that it says that there shall not be any displays if there was a request "to not disclose his or her home address or home telephone number" but it doesn't include requests not to display an "image" of that person.

So if a person doesn't want their image to be displayed, they have to request that their phone number not be shown?
4.8.2008 9:04pm
R:
Could Britney Spears buy stock in a company that experiments on animals to get legal control of what images can be shown of her on the net? Might not be a bad move.
4.8.2008 9:20pm
_Anonymous_:
I wonder if anyone will try to use this unconstitutional law against legitimate Internet sites. My prediction is that any such attempt would result in epic failure. Cf. 4chan, Scientology, Battletoads.
4.9.2008 12:48am
TomHynes (mail):
Limiting the law to "publicly post or publicly display on the Internet" is intriguing. All other forms of publishing are allowed, just don't put in on the Internet.

Does anyone know another example of forbidding publishing only on the Internet? Are e-mails covered? Is FTP "Internet", or just HTML?
4.9.2008 1:43am
shawn-non-anonymous:
This won't really work.

Take for example the current laws against email spam. The person that collects and sells email addresses for spammers is immune, provided they never directly use the address list themselves.

Likewise, a person who acquires the private information and photos of an animal researcher could simply distribute that information privately to other people for publication. Thus, as each person receives a "take down" notice, another posts it. The source is immune from the notice and continues to spread the information. Eventually, they'll just email the stuff to a friend in another country who can post it all they want.

Once information hits the intarwebs it can never be retracted.
4.9.2008 10:04am
shawn-non-anonymous:
TomHynes:


Does anyone know another example of forbidding publishing only on the Internet? Are e-mails covered? Is FTP "Internet", or just HTML?


While it is entirely possible that the law erroneously defines "internet" to equal "www", I seriously doubt it. HTTP (web), FTP, NNTP (net news), SMTP (email), etc are all specialized protocols on the internet. These can range from being very private (single email to single email) or very public (posting a picture in a news feed like alt.politics.homosexuality.)

If the law differentiated based the network protocol used to publish then you might be able to drive an entire fleet of trucks through the hole it would create. IANAL, but I would imagine the decision would spin on factors like who had access to it, how many, how easy was it to get access, etc.

As I said earlier, it would be far easier to have some person in another country post it for you.
4.9.2008 10:15am
LarryA (mail) (www):
You state that it would prevent legitimate news organizations from printing images etc. But according to the law the person has to make a written demand of each specific person business or organization in order to prevent them from printing (well, in order to make it unlawful). So, just because Joe Animal Researcher sends PETA a request to quit printing his image etc would not prevent Reuters from doing a story on Joe A. Researcher.


Actually, it would. If Reuters did the story, then Joe made the request, Reuters would have to go back through all archived issues and remove the image. Since they can't afford to do so, they will have to pass on using it in the first place.

OTOH the law actually gives PETA an advantage, since they can then use the publicity of removing the information.

My additional objection to the bill is that I really, really hate laws that protect narrowly-drawn groups of people more than the rest of us. Then there's the stupid factor, that the law is so easy to get around. What part of World Wide Web do these clowns not understand.
4.9.2008 1:00pm
zippypinhead:
This is just the latest example of the tension between speech and privacy rights being put into sharp conflict by the unique information dissemination advantages of the Internet. Just the latest (perhaps boneheaded) legislative attempt to strike a balance between enumerated First Amendment rights versus an aspect of the unenumerated privacy penumbra. Or, if one instead wants to argue that one has a property right to one's personal information, perhaps instead the issue is analogous to copyright versus fair use when it comes to republication of this information without consent. No matter how you spin it, this is a battle that's being fought on many fronts on a daily basis.

While I would probably buy into the view that in general sunshine should prevail when it comes to making information available to the public, there ARE significant collateral consequences that stem from the ease with which the Internet can make a third party's personal information available to anyone at virtually no cost. For example, public availability of home addresses and other identifying information about judges and other officials have resulted in threats and even homicides (e.g., the murders of U.S. District Judge Joan Lefkow's husband and mother). And just today the Washington Post has an article about the uproar over a company posting detailed financial disclosure forms that are required to be filed by high-level Congressional staffers, at least some of which contain enough details that they could be used to facilitate identity theft.

I may have to turn in my "I [heart] the First Amendment" button for saying this, but -- given the very real costs to unlimited posting of sensitive personal information, as a practical matter I just can't get very worked up about a legislative attempt (even if it's a bit kludgy) to give individuals some means of protecting their own information from uncontrolled dissemination on the public Internet. Doesn't matter if you justify it as a "privacy right," or a "property right," it just seems right...
4.9.2008 2:11pm
ReallySad:

My admiration for Prof Volokoh's defense of our constitutional rights dwarfs in comparison to my contempt for his failure to defend academic freedom (animal research in this case) at his own academic institution.
4.11.2008 3:34pm
Roxie:
I'm wondering what people think of the entire section of the bill's provisions related to Internet posting, not just the one subdivision Volokh posted. The full bill text of AB 2296 is online at:

AB 2296

Looks to me like they copied, almost word-for-word, existing California law "Online Privacy for Reproductive Health Services Providers, Employees, Volunteers, and Patients" (CA Government Code sections 6218-6218.05). See:

CA Govt Code 6218-6218.05
4.12.2008 3:30am