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?
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California Bill Aimed at Protecting Animal Researchers:

I blogged about some problems with the bill two weeks ago; there's now a revised version, but I'm afraid that it will probably make matters worse.

The new version narrows the proposal, from protecting the employees of a wide range of animal enterprises (including food sellers, agricultural enterprises, zoos, and agricultural fairs) to instead cover only employees of "an entity that lawfully uses animals or animal products for education or research in any exercise of a constitutional right to academic freedom." But the trouble is that there's no well-established meaning of "any exercise of a constitutional right to academic freedom," at least where use of animals and animal products is involved.

The courts have talked in the past about a constitutional right to academic freedom, but they generally haven't precisely defined it. It is pretty clear that professors' speech is protected against criminal punishment, civil liability, and in some instance even firing by public university administrators -- though even there it's not clear whether this is because of some "constitutional right to academic freedom" or because of the general First Amendment freedom of speech. But the courts have not generally focused on a right to use products in the course of research, whether animal products or otherwise.

It's not at all clear that there is any "constitutional right to academic freedom" covering the use in research of animals, or pharmaceutical substances, or weapons, or other products (as opposed to the use in research of speech that is itself protected by the First Amendment, such as survey questions, articles, books, and the like). If, for instance, California banned any experiments on primates, I'm pretty sure this would be quite constitutionally permissible; likewise if the University of California imposed such a limit on its faculty. The government would be restricting conduct because of its noncommunicative impact, and a court would likely conclude that the government has an adequate interest for this restriction (protecting primates); so even if there is a presumptive right to do research using nonspeech conduct -- itself not clear -- that right would be easily trumped by the government interest. So while the UC is an entity that lawfully uses animals or animal products for education or research, I'm inclined to doubt that its use of animals for education and research is in any exercise of a constitutional right to academic freedom.

Now perhaps because of this, courts would interpret the provision nonliterally -- but it's not obvious to me just what interpretation they would use, and in any case it seems to me a mistake to enact a bill that doesn't literally cover what you want it to cover, hoping that courts will eventually fix the problem.

Related Posts (on one page):

  1. California Bill Aimed at Protecting Animal Researchers:
  2. Prohibiting Publication of Others' Photos?
Comments