Cash Cutoff for Mugshot Sites A Dangerous Idea

If you're arrested, your arrest is public information: your name, your address, what you're accused of. Many news organizations publish this information on a daily basis for their communities, as part of their news coverage.

Many news outlets also publish (here, here, here and here, for example) "mug shots," the photograph that the police take of the people they arrest. These photos are public information in most states, although the federal Justice Department recently took a stand against releasing such photos. Some police departments (Philadelphia, Pa., Mobile County, Ala. and Maricopa County, Ariz., for example) also post their mugshots online.

But there are some sites on the internet (including both national sites like Arrests.org, Mugshots.com,  and MugshotsOnline.com and local sites like Eugene [Or.] Mugshots.com) that publish this information, particularly the photos, with a different business model: they offer to take down mugshots, for a fee.

Some states have taken action against these sites.Utah bars police departments from releasing the photos to sites that charge for removal (Utah Code 17-22-30), while laws in Georgia (2013 Ga. Laws ch. 188) and Oregon (2013 Or. Laws  ch. 330) purport to require the sites to remove, for free, photos of those who are exonerated or whose record is expunged.

The Georgia and Oregon statutes are of dubious constitutionality. Posting the mug shots is a statement that the person pictured was arrested: a clear fact regarding the actions of government officials. The U.S. Supreme Court has clearly held that if a publisher "lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order." See, e.g.,  Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102 (1979).

The Georgia and Oregon laws are also problemattic in that they specifically apply only to mugshot websites, while exempting -- explictly, in the Georgia statute -- news media, including news websites. The Supreme Court has been skepitcal of such discrimination against  particular speakers, saying that "speaker-based laws demand strict scrutiny when they reflect the Government's preference for the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say)." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 658 (1994).

But these laws are not what created the current problems for the mugshot sites. Instead it was The New York Times, which began researching a story on them.