A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.

24 February 2017

Amanda Curtis wants to curtail freedom of the press in Montana


Update, 1255 MST. The Missoulian has a good report on the bill’s hearing this morning. Rep. Bob Brown (R-Thompson Falls) moved to approve the bill immediately, but withdrew his motion after Rep. Nate McConnell (D-Missoula) objected.

Sometimes, legislators irresponsibly play to the crowds on bills like this. HB-553 is clearly unconstitutional, but it might end up receiving majorities in both houses of the legislature because legislators want to give the news media the back of their hand, and to curry favor with voters who dislike the news media. That outcome would pass the buck to Gov. Bullock, forcing him to veto the bill or sign it and pass the buck to the judiciary.

Does this help Amanda Curtis with delegates to the Democrat’s nominating convention? I don’t know. Many Democrats have a cramped view of free speech and freedom of the press, and are appallingly willing to subordinate the First Amendment to over-developed social sensitivities. I think her sponsorship of HB-553 is sincere, but that her commitment to protecting civil liberties is weak. Some Democrats may like that.

Begin original post. This morning, the judiciary committee of the Montana House of Representatives will hear House Bill 553, which would impose a prior restraint on the publication of certain photographs by the news media. It’s a short bill being carried by Rep. Amanda Curtis (D-Butte), who wants to replace Ryan Zinke in the U.S. House of Representatives.

NEW SECTION. Section 1. Prohibition against publication of fatal accident scene photographs on social media prior to notification. A news media organization may not publish on a social media platform photographs of a fatal accident scene that make it possible to identify a victim of the fatal accident before the next of kin of the deceased has been notified of the death.

NEW SECTION. Section 2. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 44, chapter 5, part 3, and the provisions of Title 44, chapter 5, part 3, apply to [section 1].

Title 44, chapter 5, part 3, of the Montana Codes Annotated addresses the dissemination of criminal justice information.

Curtis may be trying to prevent law enforcement photographs of people killed automobile accidents from being released until after the next of kin have been notified — but that’s not what her bill says. HB-553:

  • Applies to all photographs, including those taken by news media personnel, not just to photographs made by law enforcement personnel.

  • Fails to define “social media platform,” thus implicitly falling back on Justice Stewart famous “I know it when I see it” formulation (Jacobellis v. Ohio).

  • Fails to provide an enforcement mechanism.

In short, it’s so poorly drafted that its author should consider a refresher course in drafting legislation. I suspect it may have been drafted in a great hurry.

Beyond those defects, it’s an unconstitutional prior restraint on publication, and therefore a prima facie violation of the First Amendment. It’s censorship, pure and simple, reckless and egregious, irresponsible and pernicious.

Should photos of the dead be published before their next of kin have been notified? There’s little reason for doing so. And I cannot find anything in a quick search of the internet to indicate that it’s a problem in Montana. But the government has no business telling the owner of a photograph of an automobile accident when he can publish it.

If HB-553 is intended to control the use of photographs created by law enforcement personnel, the bill should be rewritten to forbid releasing the photographs until the next of kin have been notified. That would accomplish the bill’s stated purpose without gutting the First Amendment and attacking freedom of the press in Montana.

Those are questions to consider over the next two years. In the meantime, kill HB-553