Louisiana Set to Criminalize Publishing That Someone Has a Concealed Carry Permit

The bill is HB8, though there’s a Senate amendment; apparently, the Legislature plans to enact the bill as amended. The bill bars the government from releasing information about who has applied for or gotten a concealed carry permit, and the Legislature certainly can impose such restrictions on the government itself. But then it also criminalizes speech by everyone else (I merge the House Bill and the adopted Senate amendment):

Absent a valid court order requiring the release of information or unless a recipient of a concealed handgun permit is charged with a felony offense involving the use of a handgun, it shall be [a misdemeanor] … to release, disseminate, or make public in any manner any information contained in an application for a concealed handgun permit or any information regarding the identity of any person who applied for or received a concealed handgun permit issued pursuant to this Section.

So blogging that you happen to know that a gun control advocate actually has a concealed carry permit himself would be a crime. Or say that you know someone has a concealed carry permit, and that person is sued for supposedly making death threats, or is criminally prosecuted for a felony offense involving a shotgun, or otherwise seems dangerous and unstable — mentioning the permit in publicly discussing the situation would be a crime. Mentioning applicants’ names in giving examples of cases where you think a concealed handgun permit was wrongly issued, or wrongly denied, would be a crime, too. So would talking about a person’s concealed carry permit in a biography of the person, or in a newspaper or magazine story that is trying to give a sense of the kind of person he is.

This is a clear First Amendment violation. Florida Star v. B.J.F. (1989) struck down a law banning the publication of the names of rape victims, once the information was released by the police (even when it was released in violation of department policy). This statute is thus unconstitutionally overbroad, because it has no exception for these kinds of erroneous-release situations. But even if the statute were limited to exclude information gleaned from public records, it would still be unconstitutional: It would be a content-based restriction on speech. It would apply to speech about crime, lawsuits, threats to public safety, and other matters of public concern.

And while in theory even such content-based speech restrictions might be constitutional if they are “narrowly tailored” to a “compelling government interest,” this test has rightly been extremely hard to satisfy (consider Florida Star itself). Indeed, one reason our free speech protections are so strong is that courts have been extremely hesitant to uphold speech restrictions under this test. They are thus very likely to strike down the statute — and if they do uphold it, the precedent would risk undermining free speech protection more broadly. The Second Amendment (or, to be precise, the desire to keep confidential people’s exercise of their gun rights) shouldn’t be a basis for undermining the First Amendment.

Thanks to the Media Law Resource Center’s Media Law Daily for the pointer. UPDATE: I initially wrote that the Senate plans to pass the bill as amended; I now realize that the Senate did so pass the bill, but the expectation is that the House will concur in the amendments. I revised the opening sentence accordingly.

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