THE CONSTITUTIONAL ISSUES OF PUBLISHING MUGSHOTS IN THE AGE OF SCREENSHOTS AND DIGITAL MEDIA.

• Author: Mcelhose, Ryan J.

"In 2022, with all of the websites and all of the abilities to share photographs, once these mugshots are released, it's literally a digital scarlet letter that follows you around for the rest of your life." (1) - Rep. Royce Duplessis (D - New Orleans) "The double-shot picture, with front and profile shots alongside each other, is so familiar, from 'wanted' posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic." - Barnes v. United States, F.2d 509, 510-11 (1966) In 2018, Blake Mathesie was an undergraduate student at the University of Florida who held a part-time job as a bartender. (2) One night, Mathesie broke up a bar fight at work. (3) The party who initiated the fight decided to retaliate against Mathesie. (4) Weeks later, four to five police officers pulled up to Mathesie's house with an arrest warrant on the grounds of felony battery assault. (5) Upon arrest, the police booked him, which involved taking his mugshot. (6) A mugshot is a set of photos of someone arrested by the police which includes the person's identifying information, such as name, height, date of birth, references to the alleged crime, and more. (7) Ultimately, the judge dropped all charges writing, "[T]his court did not find the victim's testimony credible" - finding that Mathesie only involved himself to end the fight. (8) Although the court found Mathesie innocent, his mugshot lives online forever. (9) His mugshot was brought up during job interviews. (10) When he tried to remove it from websites, he reported that companies would demand money. (11) As a result, Mathesie contacted State Senator Aaron Bean (R-04) and State Representative Jason Fischer (R-16) to help change the law on accessing mugshots. (12)

In June 2021, the Florida House and Senate unanimously adopted bills HB 755 (13) and SB 1046 (14) (jointly "the bills") respectively, and Governor Ron DeSantis signed into law protections for Floridians who wish to remove their mugshots. (15) The bills state "if the photograph is not removed within 10 calendar days after receipt of the written request for removal [...] [t]he court may impose a civil penalty of $1,000 per day for noncompliance." (16) This law is mainly aimed at websites that solely publish mugshots as their main business; the law does not challenge news websites. (17) Jennifer Mansfield, a constitutional lawyer based in Florida, argued that the new law is unconstitutional as it "chills speech [...] [and]... chills the reporting of news because people become afraid of the severe legal sanctions." (18) Further, she argued that the new law targets "a person or entity whose primary business model is the publishing or disseminating of such photographs for a commercial purpose, and that "commercial purpose" is vague and can be used against the press." (19)

Recently, the Sixth Circuit observed that "[m]ugshots now present an acute problem in the digital age." (20) In this digital age, mugshots are not only published by local or national media, but these mugshots are also posted by private companies, private citizens, and police departments on their social media platforms. Even if the American people pay private, commercial websites to remove their mugshots on their site, these images can be resurfaced by a simple screenshot (21) on peoples' tablets, smartphones, or laptops.

Academics, attorneys, constitutional activists, judges, lawmakers, scholars, and everyday Americans have discussed the issue of accessing photos of "the lowest point of someone's life." (22) The people, press, and private commercial websites cannot resurface mugshots without law enforcement agencies originally releasing the photos. (23) Whether and how these groups can obtain mugshots from state law enforcement agencies depends on each state's open records laws. (24) People who are charged with federal crimes typically have their mugshots taken by the United States Marshal Services. (25) Therefore, the Freedom of Information Act - federal law - applies to the disclosure of federal mugshots as it relates to peoples' privacy rights. This issue is of great American importance as nearly one of three American adults (77.7 million Americans) have been arrested. (26) Furthermore, according to article Digitizing and Disclosing Personal Data: The Proliferation of State Criminal Records on the Internet, in regards to pre-conviction data, every year there are over 10 million arrests, 4.5 million mugshots, and 14.7 million criminal court proceedings. (27) In regards to post-conviction data, approximately 6.5 million current and formerly incarcerated people and 12.5 million people with a felony conviction have a record on the Internet. (28)

This paper takes the position that American people's Due Process rights are violated when their mugshots are digitally disseminated prior to a conviction. The press's First Amendment rights are not violated by not having access to pre-conviction booking photos because the press can report on other publicly accessible information. The same conclusion can be made relating to private citizens and private companies who assert that their Freedom of Speech rights are violated by not having access to obtain, publish, and disseminate pre-con-viction mugshots. Existing scholarship has addressed the issue of publishing mugshots with privacy arguments related to the Freedom of Information Act (FOIA). However, this Article, for the first time, addresses the issue solely in the context of the Constitution, evaluating issues from the 1st Amendment, 4th Amendment, 5th Amendment, 6th Amendment, 8th Amendment, and 14th Amendment.

This paper will specifically examine the constitutional issues which arise from publishing mugshots in the age of screenshots and digital media - and not the privacy issues concerned with the matter. In doing so, Part I of this paper will provide a brief history of the utility of mugshots and rise of mugshots in the digital age. Part II of this paper will analyze the claims of Due Process violations when the people, police departments, the press, and private companies publish mugshots. Part III of this paper will analyze the First Amendment issues attached to publishing mugshots in the digital age - particularly Freedom of Press and Freedom of Speech positions on both sides of the issue. Part IV of this paper will analyze a court case's Eight Amendment violation claim. Part V of this paper will highlight recent laws that addressing publishing mugshots in different U.S. states. Lastly, Part VI of this paper will provide recommendations rooted in the constitutional interest of the American people.

PART I: A BRIEF HISTORY OF THE UTILITY OF MUGSHOTS FROM THE 1800S - PRESENT

The concept of mugshots began in the 1800s in France where photos as a "signaletic" system of identification by recording "... [d]etailed anthropometric measurements" such as arm span, head length, and height, as well as forward-facing photograph to categorize and identify people who were accused of breaking the law. (29) Shortly after, parts of Europe and the United States followed suit. (30) In its inception, mugshots typically remained in police files. (31) Around the mid-1800s, police departments began to compile mugshots, along with an arrested person's biographical information and histories, into leather-bound books called "rogues' galleries." (32) By 1857, in New York, these rogues' galleries were publicly accessible in physical galleries for public consumption as a means of deterrence and crime prevention. (33) As a result, some people whose photos were displayed in the gallery were so embarrassed that they left New York for fear of being recognized and ridiculed. (34)

Eventually, the display of mugshots via physical galleries became obsolete; however, these photos continued to enter the public realm. (35) Newspapers and tabloid magazines would publish mugshots in local news articles, which affected the few who had their mugshots in the paper, for a limited period until time had passed and the newspapers were eventually tossed away. (36) The rise of the commercialization of mugshots coupled with the rise of the digital age ensured that mugshots would have limitless publication and preservation in the public sphere. (37)

1. The Mugshot Industry: Private Companies and the Digital Media

   Mugshots are widely accessible because many U.S. states have laws requiring open access to public records and are viewed as public records information. (38) Across the country, many cities and counties publish mugshots online, including posting these photos on police or sheriff departments' web-sites. (39) Private websites that make a lucrative business out of collecting peoples' mugshots can collect peoples' mugshots through " screen scrapping programs to expeditiously snag every new and old [mugshot] from a department's system, and then post them to their own sites. " (40) While some of these mugshots are taken from recent arrests, other posted mugshots stem from " decades-old arrests. " (41)

   These private, commercial websites launched an industry of posting public mugshots for direct commercial gain around 2011. (42) At one point, these private companies also benefitted from " search engine optimization" techniques which allowed them to tag photos that could show up at the top results when someone enters a person's name into an internet search engine, say Google. (43) According to Florida's SB 1046 five-page staff analysis, the report made note that 77 percent of employers google a job applicant's name during the hiring process. (44)

   Further, these private companies make money by charging fees which can range from $178-$399 to remove a person's photos from the website. (45) Separate reputation management companies offer many services including supposed removal of mugshots and arrest records; their...