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).
Some Arkansas legislative members also have problems with a new House policy on the use of audio and video, although it remains uncertain if and how the policy will be amended.
The new policy focuses primarily on how the House will manage video and audio 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 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.
In a previous story on the issue, Fort Smith attorney Brian Meadors said the new policy is “absolutely incompatible” with speech protections under the First Amendment. The Republican Party of Arkansas on Tuesday (May 3) challenged House Democratic leadership to step back from a rule that potentially limits freedom of speech.
Stephens Media covered the GOP challenge, with House Chief of Staff Bill Stovall saying the new policy mirrors that of other states and has met with legal problems in those states.
“We have had numerous people look at the legal aspect of this issue and checked with other states, and there’s not been any challenge that we’ve been able to find thus far on similar polices around the country,” Stovall said in the Stephens Media (Arkansas News Bureau) story. “But research has been incomplete, and we’re still evaluating the legal standing of the policy.”
House Chief of Staff Bill Stovall said the overarching goal was to “protect public money so it is not converted for profit or gain.”
Rep. Davy Carter, R-Cabot, an attorney and member of the House Rules Committee, disagrees that the new policy is incompatible with the First Amendment. He noted that the U.S. Supreme Court has held in several contexts "that a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not
subject to strict scrutiny."
“Speaking in only terms of the First Amendment, I think fundamentally there is a difference between the government choosing to not supply its property for commercial uses than the government first supplying the property and then restricting its use. Having said that, I do recognize that the question becomes less clear when dealing with political speech,” Carter explained.
Rep. Nate Steel, D-Nashville, an attorney and one of the top Democratic leaders in the House, sees the new policy as a clear violation of speech protections.
“While I have great respect for the rules of the House, it appears to me that our current policy regarding the use of audio and video recordings is in conflict with basic principles of the First Amendment,” Steel said. “If it does not violate the letter of the law, it certainly violates the spirit, as well as the reasoning for streaming and recording debate in the first place. I hope that, as a body, we continue our efforts toward greater transparency and refine our policies accordingly.”
Rep. Jim Nickels, D-Sherwood, attorney and chair of the House Constitutional Issues subcommittee of the State Agencies and Governmental Affairs Committee, finds it more problematic that not all House committee rooms are wired for video and audio recording. But he does believe the new House policy violates free speech protections.
Rep. Kathy Webb, D-Little Rock, chair of the powerful Joint Budget Committee and member of the House Rules Committee, said simply that the policy is wrong.
“I have some real First Amendment concerns about it. While I don’t want to see folks taking video and editing to distort what a person really said, I think the First Amendment issue trumps that. The penalty provision raises more red flags for me. I know a documentary film maker who wants to use some of the footage, and this could prevent that. I think that is wrong,” she explained.
Carter said nefarious use of video and audio is part of the process.
“Regardless of the legal question, respectfully, this is not a matter that I am particularly concerned with. Although I am sure I would not like someone using the video in an adversarial political advertisement, especially one taken out of context, as a public official it comes with the territory,” Carter said.