The First Amendment Exemption of Video, Images, and Photos of Graphic Material in the Media
Freedom of speech, provided by the First Amendment of the Constitution, is one of the most important protections for citizens of the United States. There is a reason why it was encapsulated in the First Amendment, due to its significance as what America promised when it was first established. The right of freedom of speech, however, is not absolute and requires a balancing with other public considerations such as public safety.
Senate Bill 7022: The Exemption to Public Disclosure of Graphic Images, Video, and Audio
The Florida legislature has recently put forth bills involving public safety and privacy that are contrary to the rights established in the First Amendment. One of these exemptions, found in Senate Bill 7022, would deny the public disclosure in public records of any photos, video, and/or audio that depicts the killing, murder, death of person. Killing of a person includes any and all acts or events that led to the death of another person, as well as any occurrences before or after the death that are the proximate cause of the person’s death. The law would ensure that any images or audio of the person’s death will be kept confidential and only provide access to the family of the person who died to view the images or listen or the audio.
Discretion of the Court to Exempt Graphic Material from Public Disclosure
It will be up to the discretion of the court, however, in the case of any challenge to the exemption during civil or criminal proceedings, to evaluate several factors when deciding if another person or persons should be permitted to view or hear the images or audio of the killing. This law, however, does not exempt the disclosure of the video, photos, and/or audio from civil or criminal proceedings where the video, photos, or audio may be admitted as evidence for proof of a crime.
The following are some of the factors that the court will evaluate when making its ruling:
- The extent to which the release of the images or audio would intrude on the family’s right to privacy, and/or if there is another way in which to reveal the information that intrudes less on this right to privacy;
- The necessity of the disclosure for evaluation of the government’s performance in the case where the killing was a byproduct of the government’s and its officials’ involvement; and
- The availability of the information that could be found within the images, video or audio in other public records, among other considerations.
Purpose Behind the Bill
The purpose behind the bill is to diminish the availability of graphic footage from the public eye. Death and dying, in and of itself, is an intimate and personal experience, and the provision of this information is not only unnecessary to the public, but may also be traumatizing to the family and loved ones who may be forced to relive the death and killing continually.
Graphic Material and Criminal Proceedings
In criminal proceedings, where the video, audio, or photos are considered evidence, this does not mean that it will automatically be found to be admissible. Some photos, videos, and audio of a person’s death may be so graphic and unsettling that it may be found to be too prejudicial to the criminal defendant to show to the jury. Depending on the court and the graphicness of the material, the judge may determine that the information that may be received from the graphic material must be tailored in a less graphic and offensive manner. For example, a court may rule that all graphic material must be shown in black and white rather than in full color. The court may also rule that other testimony and evidence may be sufficient to provide the same type of factual information but in a less explicit way.
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