[Editor’s note: The following story is a collaborative effort among Roby Brock (Talk Business), Matt Campbell (Blue Hog Report), Michael Tilley (The City Wire), and Jason Tolbert (The Tolbert Report).]
A communications policy adopted by the Arkansas House of Representatives designed to avoid public property being used for commercial gain raises Constitutional questions.
The new policy, adopted Wednesday (April 27), focuses primarily on how the House will manage video and audio collected now that the Representative body provides live video and audio of committee meetings and House floor action. During the recently concluded first session of the 88th General Assembly, the House collected a large amount of archival video and audio.
“Website content shall not be used for any political, partisan, campaign or commercial purpose. ‘Commercial purpose’ in the context of this policy document shall mean a purpose that is intended to result in a profit or other tangible benefit,” notes the new policy rule.
“The House of Representatives did not adopt a policy with the intent of being restrictive or unconstitutional, but to be the best stewards of the public’s money as possible,” said House Chief of Staff Bill Stovall.
He said the overarching goal was to “protect public money so it is not converted for profit or gain.”
The policy also notes: “No live or duplicated archival recordings of House proceedings may be used for political, partisan, campaign or commercial purposes. Use shall be consistent with provisions provided by law.”
Legislative members of the House Management Committee also are considering a criminal penalty for violation of the policy.
But there are several legal issues raised by the policy. The first is that the policy could be an infringement of the right to free speech not likely to withstand strict scrutiny by a court. In a nutshell, the use of the video and images from the House by media, political blogs, and especially campaigns is “core political speech.”
“This is hysterical. … The criminal penalty (suggestion) is especially outrageous,” said Fort Smith attorney Brian Meadors, who specializes in First Amendment policy and law. He successfully sued the Cedarville School District (Crawford County) when school board members there banned Harry Potter books from the school library.
“I’m secretly hopeful that they push something like this, so someone can hire me and I can get this law thrown out,” Meadors said of the new policy.
When looking at restrictions on core political speech, the U.S. Supreme Court has said the restriction must be narrowly tailored to serve a compelling government interest, and no less restrictive method can be available. In other words, the government has to be trying to do something really important with the rule, and there can’t be an easier, less oppressive, way to do it.
House committee members also said they want to know how the material will be used before approving requests to provide archival video or audio files.
But such a request requirement raises a related First Amendment issue. If the House decided to deny Freedom of Information requests for the videos based on who was requesting them or what the House assumed would be done with the videos after release, they would have to be able to prove that release of the information would “surely result in direct, immediate and irreparable damage to our Nation [or State] and its people.” Otherwise, they would be guilty of illegal prior restraint, which the Supreme Court has roundly rejected since 1937.
Meadors said most of the House policy is on legal shaky ground.
“It is absolutely incompatible with the First Amendment. Once the information is out there, the government cannot tell you how to use it,” Meadors said. “What they forget is that you in the media, and I guess anyone really, you have a Constitutional right to mock these people. … And there is no difference if you do that with the notes you take at a hearing or whatever, or what they provide (via the website).”
The law also suggests that any preemptive denial of a request under the Freedom of Information Act (FOIA) would also be a violation of the FOIA itself. There is no exception under the FOIA statute that allows any government agency to withhold the release of otherwise available information based on who is requesting it, provided that the requesting person is a non-incarcerated Arkansas resident.
“Every law student dreams of having a clean and easy First Amendment case. And this would be it. This would be handing me a case on a silver platter. If they pass that rule, there is no way it would stand up in court,” Meadors said.
PROTECTING PUBLIC MONEY
However, Stovall stands by the policy, saying the Arkansas Bureau of Legislative Research drafted the rules.
“We basically adopted the same policy as Texas has in place, and they’ve been streaming down there since the early 90s,” Stovall explained.
The Texas House policy prohibits use for political purpose with a $5,000 fine for violations. It prohibits use for commercial purposes without prior approval and imposes a criminal penalty of a Class C Misdemeanor. However, an important exception is made for “educational or public affairs programming, including news programming.”
Stovall said providing the media unfettered access to and use of live and archival video and audio would result in the House becoming “caught in a situation where we are replacing traditional broadcast media and converting public money into profit for a non-public entity.” In other words, concerns of commercial benefit by media use outweigh any benefits the public might have in broader use of House action through Arkansas media outlets.
Meadors said Stovall may have a narrow point on commercial use, but said “the policy is questionable, at best.”
“Under that policy, The Daily Show would not be able to make fun of the Arkansas Legislature,” Meadors said. “My legal advice to journalists is this: You just keep doing what you’re doing and if the state wants to bring charges, let them.”
OTHER STATE POLICIES
Almost every state legislative website now offers some form of broadcast of their proceedings. They range from a single audio-only live feed to full audio and video of all floor and committee proceedings in both chambers. A survey of the various states shows a wide range of policies governing the use of their live stream materials.
Some states, such as Alaska, have a public access channel that is responsible for the broadcast and sets the rules for their use. In Alaska, proceedings are broadcast as a public service of the KTOO-TV in Juneau and the station has the copyright on the materials’ use.
On the other extreme is Colorado. A non-profit organization called the Open Media Foundation is responsible for the video and audio of the Colorado legislature on their “Colorado Channel” website. Not only is the material open for anyone to use but it has instructions on how to download the video and edit clips for uploading to YouTube or personal websites.
Many states such as Arizona have the material available on their state used website but do not assert any copyright protection and allow free use of the material. In Florida, commercial use is allowed with credit while political use is prohibited.
Other states, such as Indiana, have a policy similar to Arkansas that prohibits political or commercial use. Connecticut requires express permission but has exceptions for “press releases, press kits, or related public information.”