Should websites that deal in mug shots get First Amendment protection? Journalists' group says yes

Should a mug shot taken by a law enforcement agency remain in the public domain for all time, even if charges were dropped or the person was found not guilty or has gone straight? And with a new market for companies dedicated solely to publishing mug shots on the Internet, should it be legal for these companies to charge a fee to remove a shot from their site? Those questions are being debated by journalists, lawyers, lawmakers and the people whose faces and arrest records are readily available on one of the more than 80 mugshot web sites, David Segal reports for The New York Times. (NYT photo by Brian Blanco: Even though charges from a 2011 arrest were dropped, Dr. Janese Trimaldi's mugshot is easily available online)

Some states have taken action. Oregon Democratic Gov. John Kitzhaber "signed a bill this summer that gives such sites 30 days to take down the image, free of charge, of anyone who can prove that he or she was exonerated or whose record has been expunged. Georgia passed a similar law in May. Utah prohibits county sheriffs from giving out booking photographs to a site that will charge to delete them," Segal writes. "But as legislators draft laws, they are finding plenty of resistance, much of it from journalists who assert that public records should remain public. The Reporters Committee for Freedom of the Press argues that any restriction on booking photographs raises First Amendment issues and impinges on editors’ right to determine what is newsworthy."

"The trick is balancing the desire to guard individual reputations with the news media’s right to publish," Segal writes."Journalists put booking photographs in the same category as records of house sales, school safety records and restaurant health inspections — public information that they would like complete latitude to publish, even if the motives of some publishers appear loathsome. The Reporters Committee favors unfettered access to the images, no matter how obscure the arrestee and no matter the ultimate disposition of the case. Even laws that force sites to delete images of the exonerated, the committee maintains, are a step in the wrong direction."

The mugshot companies charge anywhere from $30 to more than $400 to remove a mug shot. And several Internet mugshot sites have been named in a class-action lawsuit filed last year by Toledo, Ohio lawyer Scott A. Ciolek, who "argues that the sites violate Ohio’s right-of-publicity statute, which gives state residents some control over the commercial use of their name and likeness. He also says the sites violate the state’s extortion law," Segal writes. But Lance C. Winchester, who represents one of the sites, said the U. S. Supreme Court has ruled time and again that mug shots are public records.  Winchester told Segal, “I understand that people don’t like to have their mug shots posted online. But it can’t be extortion as a matter of law because republishing something that has already been published is not extortion.” (Read more)