The mugshot industry: freedom of speech, rights of publicity, and the controversy sparked by an unusual new type of business.

• Author: Rostron, Allen

Matthew Creed, a young entrepreneur in suburban Kansas City, decided to start a business. (1) He created a website called BlabberMouth featuring the names, addresses, and mugshot photographs of local people recently arrested. He then mailed letters to the arrestees, informing them about the website and offering to delete the information upon payment of a $199.99 fee. (2) "We have already started blabbing to the world about your release from jail," the letter declared, "[a]nd we want to make you aware of our services, as we kind of have a big mouth." (3) The letters added that those who failed to pay the fee might see their neighborhoods flooded with fliers further publicizing the arrests. "We will canvas the neighborhood of someone just released from jail with flyers on every residence," the letter warned, "even if they have not gone to trial or been convicted of the crimes brought against them." (4)

The public outcry against Creed's business venture was intense. Local law enforcement promised to investigate whether it violated any laws. (5) Creed received death threats. (6) People angry about BlabberMouth's business tactics soon discovered that Creed had once been arrested for drunk driving and that several of his relatives also had arrest records; they began posting mugshots and information about those arrests on the Interact. (7) Just a week after the first news reports about his business appeared, Creed apologized and announced that he had decided to shut down the BlabberMouth business. (8)

While BlabberMouth was a short-lived enterprise, the mugshot industry remains alive and well, with many companies around the nation profiting from the dissemination of mugshot photos. This new type of business arouses strong feelings on both sides, with critics charging that it amounts to a form of blackmail, while the mugshot companies contend that they provide a beneficial public service protected by freedom of speech.

The mugshot industry raises intriguing legal questions, and yet these issues have received remarkably little attention from courts or legal scholars to date. Indeed, the controversy surrounding the mugshot industry's practices has yet to be the subject of any court decisions or analysis in law journals. In this article, I begin the process of exploring the difficult questions surrounding mugshot businesses. In my view, people targeted by businesses like BlabberMouth have a viable theory under which to seek legal relief, but a line must be carefully drawn between businesses that merely profit by reproducing mugshot photos and those that take the further step of agreeing not to publicize a mugshot or other arrest information in exchange for payment of a fee.

1. THE RISE OF THE MUGSHOT INDUSTRY

   Several varieties of mugshot businesses have proliferated in recent years. In some cities, particularly in the South, tabloid-style newspapers with titles like Jailbirds or Just Busted can be found for sale at gas stations and convenience stores. (9) Typically published weekly and selling for a dollar a copy, (10) the mugshot tabloids contain "page after page of local mug shots, interspersed with a few short crime articles from around the country." (11) The mugshots are often accompanied by commentary mocking the arrestees or may be "grouped under kitschy headlines," like the "wrinkly rascals section" (for elderly arrestees) or the "hairdo's and don'ts" section. (12) The tabloids also contain advertisements, "mostly for cash advance outlets, bail bondsmen, and defense attorneys." (13)

   These publications are popular. For example, the central Arkansas edition of The Slammer sells about 7,000 copies a week. (14) As that newspaper's publisher explained, "[m]ost people look at this because they're curious and they want to gawk and gossip a little bit." (15) Each issue of The Slammer includes a disclaimer advising readers that "[n]ot every arrest leads to a conviction" and "[a]ll suspects are innocent until proven guilty in a court of law." (16)

   Mugshot businesses also thrive on the Internet. Websites like mugshots.com and bustedmugshots.com feature searchable databases of photos accompanied by information such as the person's name, offense, and date and place of arrest. (17) Other websites, like The Smoking Gun, The Hollywood Gossip, and TMZ focus on celebrity mugshots. (18) And even mainstream newspapers, like the Chicago Tribune and Washington Post, maintain online galleries of mugshots. (19)

   The mugshots are available because many states have laws requiring open access to public records. (20) Indeed, many cities and counties make the photos available online, such as by posting them on police or sheriff's department websites. (21) The companies that operate mugshot businesses "can use screen-scraping programs to expeditiously snag every new and old mug shot from a department's system, and then post them to their own sites." (22) The mugshot businesses also benefit from the fact that "search engine optimization" techniques allow them to tag photos so that they turn up at the top of the results when someone enters a person's name into an Internet search engine like Google. (23)

   Some of the mugshot businesses make money from hosting advertising on their websites, (24) and some charge users a fee to search for mugshots in their databases. (25) But the most controversial source of revenue for mugshot websites is removal fees. People embarrassed to learn that their mugshots are on the websites can essentially pay to make them go away.

   Some mugshot websites directly offer and provide the removal service. (26) In other instances, the removal service is provided by what appears to be a business separate from the website displaying the mugshots. For example, the mugshots.com site provides a link to unpublisharrest.com, an "Exclusive Authorized Unpublishing Vendor[]" (27) that charges $399 and purports to have a "good working relationship" with mugshots.com that enables it to arrange removal from the mugshots.com site. (28)

   The mugshot websites and removal services may have a symbiotic relationship even when owned and operated independently. An investigation by Wired magazine provided a revealing example. (29) The RemoveSlander.com website promised that for a $399 fee, its team of legal experts would fight to get a mugshot removed from the florida.arrests.org website. (30) According to the owner of RemoveSlander.com, "'There is a tremendous amount of work to get the photos down.'" (31) In fact, florida.arrests.org had set up an automated mechanism so that RemoveSlander.com could remove any mugshot from florida.arrests.org at any time. (32) In return for this, RemoveSlander.com paid to florida.arrests.org a small slice ($9.95, or $19.90 for an expedited removal) of each $399 removal fee that it collected. (33) The mugshot websites thus profit when people pay to get their mugshots taken down, even when separate companies market the removal services.

2. UNCERTAINTIES UNDER CRIMINAL AND TORT LAW

   Critics denounce the mugshot industry as a racket and a scam. (34) At first glance, it might be easy to assume that the business, or at least some variants of it, must be illegal. For example, when a company like BlabberMouth sends letters soliciting payment of $199.99 to refrain from publicizing the recipients' arrests, that sounds like a form of extortion. (35) Indeed, blackmail is a felony in Kansas, and the statutes define it to include "intentionally gaining or attempting to gain anything of value" by threatening to "[c]ommunicate accusations or statements about any person that would subject such person or any other person to public ridicule, contempt or degradation." (36) Essentially telling someone "pay me or I will embarrass you by spreading the word about your arrest" certainly could be a crime under that statute.

   The picture is clouded, however, by the fact that so much confusion surrounds the crime of blackmail. Legal scholars continue to...