It’s illegal to publish official post-arrest photographs of people accused of prostitution, under an Alabama law that went into effect Aug. 1.
Newspaper editors across the state are just finding out about the law, which passed a final vote in the Legislature in May. Press advocates say it’s probably unconstitutional.
“It’s a very blatant form of prior restraint,” said Dennis Bailey, lawyer for the Alabama Press Association, which represents Alabama news media outlets.
Under the new law, the mugshot of a person arrested for prostitution “is not a public record and may not be published in any printed or electronic media or provided to any person” without an order from a district judge.
“We’re trying to look at these women less as criminals and more as victims, and we don’t want to see them be revictimized,” said Rep. Jack Williams, R-Birmingham, sponsor of the ban.
Williams has been pushing for years for changes to the state’s prostitution laws, arguing that prostitutes themselves are in most cases victims of human trafficking, more in need of help than of punishment.
“Are they criminals?” he said. “Yes, because they’re violating a criminal statute, but there are other considerations. There’s no benefit in locking them up for 30 days and doing nothing to help them get out of this situation.”
Williams’ bill, the Alabama Human Trafficking Safe Harbor Act, allows people arrested for prostitution to be held for 72 hours, with a hearing to assess their financial situation, mental health and other issues within 48 hours — with an eye toward directing the alleged prostitute to rehabilitation through a pre-trial diversion program.
“Nobody benefits from just locking someone up,” Williams said.
The bill also allows a minor, when arrested on prostitution charges, to be declared a “sexually exploited child” and offered a range of social services instead of a criminal charge.
Police statewide made three prostitution arrests of kids 17 or younger in 2015, according to state crime statistics. It’s unclear whether any of the children were actually charged with the crime, or whether police knew they were underage at the time of the arrest. Still, the state’s ability to charge children with the crime disturbed some child welfare advocates.
Williams says the ban on publishing alleged prostitutes’ photos is partly a response to the current Web-based news environment. News outlets can use the photos to drive Web traffic, he said, and the photos live for years on the Internet, even after a former prostitute has moved on with her life.
“It wasn’t so much of a problem in the days when people would read The Birmingham News or The Anniston Star and then put it in the wastebasket at the end of the day,” he said.
The Star doesn’t typically publish either photos or names of people accused of sex-related crimes until they’re convicted because the notoriety associated with the accusation often follows people even if they’re later found not guilty. Prostitution is a misdemeanor, and The Star rarely covers misdemeanor cases.
Bailey, the Press Association lawyer, said leaders of newspapers within the group were discussing how to respond to the law. He said it’s a clear case of “prior restraint” — pre-publication censorship by the government of a sort that courts have allowed only in extremely rare cases.
Alabama law allows any citizen to inspect or take a copy of any state record, unless it’s expressly made secret by law. Lawmakers in the past have hidden records from public view by banning state officials from releasing the record to the press.
“It’s very different to go ahead and say that you can’t publish this photo that you obtained through legal means,” Bailey said.
The law lays out no punishment for publishing a photograph of an alleged prostitute. Bailey said that because the ban is the state’s criminal code, it’s possible that violation of the ban could be considered a crime. It’s unclear what the name of that crime would be.
“The ramifications are not clear,” he said.
Williams, the bill’s sponsor, said it’s still legal to publish the photos of people charged with promoting prostitution — the charge typically levelled against pimps and johns. The bill doesn’t ban the publication of the names of women charged with prostitution. Williams says the publication of the name isn’t as damaging as the publication of a photograph, because there’s often more than one person with the same name.
“One thing I’ve learned from Facebook is that there’s more than one Jack Williams in the world,” he said.
The law also requires “escort services of companionship” to register with the Alabama secretary of state’s office. Every business in the state is expected to register as a business with the secretary of state; there are lists of some entities the office is expected to track, such as political action committees or athlete agents.
There won’t be any similar listing for escort services, said Brent Beal, a lawyer for the secretary of state’s office. Escort services will register as businesses like any other, he said.
“If someone knows of an escort service that isn’t registered and wants to report that to us, we’d be happy to share that with ALEA,” he said, using the acronym for the Alabama Law Enforcement Agency.
So far, there are about two dozen businesses registered in the state with “escort” in their names, but most are in clearly legal businesses such as house-moving, mobile home transportation and funeral processions.