Florida Today Gets “New Law” Wrong.

In an article entitled New Florida laws: Daylight saving time, marriage age, opioids, criminal records the folks at the Florida Today wrote about a new law on mugshots saying:

Criminal Records: A person may request the removal of their arrest booking photo from a website or anywhere else where it can be publicly accessible. The request must be sent via registered mail and include proof of identification. This was approved during the 2017 session.

We do want to say that this article was written by the Associated Press and not the Florida Today. Still, if you publish it, on some level you have to own the accuracy of what is presented. As it turns out, what is presented is not accurate at all.

We had been following this law as it proceeded through the Legislature as it seems there are some issues with it as written and passed. However, what passed does not say what the Florida Today claims it does:

Section 1. (1) Any person or entity engaged in the business of publishing through a publicly accessible print or electronic medium or otherwise disseminating arrest booking photographs of persons who have previously been arrested may not solicit or accept a fee or other form of payment to remove the photographs.

(2) A person whose arrest booking photograph is published or otherwise disseminated, or his or her legal representative, may make a request, in writing, for the removal of an arrest booking photograph to the registered agent of the person or entity who published or otherwise disseminated the photograph. The written request for removal of the arrest booking photograph must be sent by registered mail and include sufficient proof of identification of the person whose arrest booking photograph was published or otherwise disseminated and specific information identifying the arrest booking photograph that the written request is seeking to remove. Within 10 days of receipt of the written request for removal of the arrest booking photograph, the person or entity who published or otherwise disseminated the photograph shall remove the arrest booking photograph without charge.

(3) The person whose arrest booking photograph was published or otherwise disseminated in the publication or electronic medium may bring a civil action to enjoin the continued publication or dissemination of the photograph if the photograph is not removed within 10 calendar days after receipt of the written request for removal. The court may impose a civil penalty of $1,000 per day for noncompliance with an injunction and shall award reasonable attorney fees and court costs related to the issuance and enforcement of the injunction. Moneys recovered for civil penalties under this section shall be deposited into the General Revenue Fund.

(4) Refusal to remove an arrest booking photograph after written request has been made constitutes an unfair or deceptive trade practice in accordance with part II of chapter 501, Florida Statutes.

(5) This section does not apply to any person or entity that publishes or disseminates information relating to arrest booking photographs unless the person or entity solicits or accepts payment to remove the photographs. (emphasis ours)

The law only applies to sites that demand payments to take down mugshot photos. There are websites that capture every mug shot taken and post it on a site and then when asked to remove the image for any number or reasons, the site says “we’ll remove it for a fee.”

As the law does not apply to sites that don’t demand a fee, and who are under no obligation to take down an image that is in the public record, we wish the Florida Today would have done a little research and gotten this right.

However, there are still First Amendment issues that are raised by this law.

Generally speaking, the government cannot control speech that is made in the public interest. Is a person’s arrest and or a mug shot of that arrest in the public interest? We believe it is.

While we certainly understand the individual who was arrested and then either not charged, had the charges dismissed, declared “not guilty,” etc., the arrest itself is still in the public interest. Furthermore, as the law only applies to sites that charge fees to remove an image, what about the sites that don’t charge for removing an images? Won’t the people who want the mugshot removed still have the same issue and want the image and information removed from the public eye?

Frankly, we can see this being the start of the legislature trying to regulate speech – even truthful speech. (It is the truth that the person was arrested and a photo taken of them.) The European Union for example, has new laws in place that deal with the “right to be forgotten” where citizens can demand posts, articles, and even search engines delete any reference to that individual. This seems to be a step toward that.

We can also see this law as described by the Florida Today to be used by some politicians or public figures who want their mug shots removed and thrown down the rabbit hole. We aren’t saying who might do such a thing, but we are pretty sure our readers are smart enough to figure out about whom we are talking.

We agree with Barbara Petersen, president of the First Amendment Foundation:

Petersen said she wishes Scott would have vetoed the entire bill.

“It would have been easier if the governor would have vetoed it and told the Legislature to start over,” she said. “There’s just too many questions.”

To us, this is a violation of the oath that the governor and the legislature took too protect, defend and follow the US and Florida Constitutions.

Either you believe in free speech, or you don’t.

It’s that simple.

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