Kentucky motorists could not use their phones to take video or photos of car wrecks — or post them to social media — as they drive past crash sites under House Bill 149, filed Friday by freshman state Rep. Melinda Gibbons Prunty, R-Belton.
Under the legislation, passengers in passing cars could take video or photos, and drivers would be free to park and do the same. But drivers would not be allowed to play photographer while they drove, or they could face a fine of up to $500 and up to 30 days in jail.
On Monday, Prunty said she initially wanted to ban anyone from posting car wreck pictures to social media before emergency workers had time to notify families who lost a loved one. The ban was requested by a volunteer fire chief in her House district after a fatal head-on collision that quickly appeared on Facebook pages in the community, revealing the identities of the victims, she said.
But legislative staff members advised Prunty that such a broad ban could violate the First Amendment’s right to freedom of speech and freedom of the press, she said. So her bill is more narrowly tailored to restrict the behavior of drivers while they are behind the wheel, making it “as much about public safety as it is about gawking,” she said.
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“We really did not want to impede on anybody’s First Amendment rights,” Prunty said. “The way it’s written now, you can stop and take pictures, or your passenger can take pictures, but you cannot take pictures if you’re supposed to be fully in control of a motor vehicle.”
Based on a cursory review of Prunty’s bill, the state’s pre-eminent First Amendment lawyer said Monday that it seems to be constitutional because it focuses exclusively on drivers, and to protect public safety, limits can be placed on drivers’ behavior.
“What you’re allowed to do while you’re standing still or while you’re a passenger in a car can be legally restricted when you’re driving, and that’s perfectly acceptable under the First Amendment,” said Louisville attorney Jon Fleischaker, who helped write the state’s open-government laws.
“For example, it’s perfectly legal for an adult to drink a beer, but not when you’re driving. Twelve-year-olds can sit in a car, but we’re not going to let them drive,” Fleischaker said. “A lot of states don’t even let you use a hand-held cellphone at all while you’re driving. Is that a violation of the First Amendment? I don’t think so.”
In Kentucky, drivers younger than 18 are banned from using cellphones in any capacity. Adult drivers have been banned from texting while driving since 2010 — a ban that is not, perhaps, universally enforced — but they are allowed to make phone calls. The law so far has not addressed the use of cellphones as cameras by adult drivers.