‘Mug shot’ sites pose First Amendment dilemma

Oct 25, 2012

Inside the First Amendment
By Gene Policinski
First Amendment Center
You can’t put a price on justice – but some are trying to charge a fee to fix what others call an injustice.

There’s nothing good about getting arrested, even if the charges are dismissed or you’re found innocent at trial. The same goes for having a “mug shot” – a photo made at a jail or holding area – taken and filed with a county lockup or police department, complete with ID information.

In the past, those arrested usually could count on something called “practical obscurity” to keep their images and records out of sight. Given that just a tiny number of arrests are newsworthy, prompting news organizations or others to seek such photos, arrest data and mug shots would remain part of rarely accessed government files.

But now, an uncounted number of the nation’s county jails post mug shots and arrest data online. For public officials, the motive often is a corrective one. One Idaho sheriff said recently the threat of a publicly displayed photo works wonders in deterring drunk drivers: “I don’t know how many times I have heard from people that they got a designated driver so they don’t end up on our Website,” Ada County Sheriff Gary Raney told the Associated Press earlier this year.

Others praise the postings as a way to hold jail officials accountable. Not only do the mug shots offer visual evidence of an imprisonment, but they also show whether the person entered custody with any facial injuries – perhaps proof of mistreatment during the arrest.

So far, so good. But now let’s consider companies that take mug shots and print or post them online in publications with names like “Checkmate” or “ArrestCentral.” Is there a truck stop or convenience store that doesn’t offer an update on who got thrown into the local slammer – often complete with color photo?

At least one site, Mugshots.com, cloaks itself in constitutional robing, including the First Amendment value of insuring public-records transparency and the Sixth Amendment fair-trial guarantees.

In its “frequently asked questions” the site states: “Imagine a world with no transparency, ‘star chambers’ and citizens who are secretly dragged into investigation [never to see] the light of day again. No one sees. No one hears. No one knows. It's hard to imagine this was all not so long ago. Russia? China? North Korea? Cuba? Or even today, Guantanamo Bay, or the CIA’s ‘black sites’? Greater openness and transparency are the foundation of strong government of the people.”

All true. But though the postings benefit the individual and the public, who gains from taking down the photo? The individual and his or her reputation, certainly – especially when prosecution was erroneous or failed to convict. But the benefit to society of a private company or person profiting from removing information from public view is, well, nonexistent.

There’s the rub: Those public-spirited companies like Mugshots.com suddenly turn self-serving in demanding from $99 to $399 to take down a photo. Critics call the practice “unfair” or “extortion.” But given that the postings are done by private companies, not public officials, legal cures proposed thus far seem as bad as the ailment.

Don’t make jail or booking photos available to the public? Then we lose accountability and transparency.

Outlaw commercial use of such material? But there are so many legitimate and long-time users, from real estate agencies to scholars to journalists.

Let the government define “news” to protect local news outlets but screen out tabloid arrest-profiteers? That would invite abuse and might be futile. Arrests are news – and also public records – and identifying those in custody is important to society. It’s one role of an independent free press.

In 1913 Justice Louis D. Brandeis wrote: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” In that spirit, perhaps posting the mug shots of those profiting in such bald fashion from public records would be the best, most First Amendment-friendly response.

But so far, ideas to stop profiteering from arrest records seem less than satisfying and fall short of a solution.

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.