Jon Ronson’s recent book So You’ve Been Publicly Shamed examines the plight of people whose reputations were besmirched online and their efforts to restore their good names. The combination of the availability of a breathtaking amount of information on individuals and the sanctimoniousness of call-out culture creates a “perfect storm,” in which a sullied reputation is often very difficult, and sometimes impossible, to redeem.
My colleague Eumi Lee’s recent article Monetizing Shame offers an in-depth examination of one destructive, and surprisingly underexplored, avenue through which such shaming occurs: the availability and commodification of criminal mugshots. As Professor Lee’s article argues, current legal structures offer very little recourse for people whose mugshots are traded freely and openly on the internet, often on multiple websites. Since one’s mugshot is invariably taken upon arrest, the existence of the image itself is no testament as to the portrayed subject’s guilt or innocence, or as to the existence (or outcome) of the legal case against the subject. As a consequence, people are dismayed to find that regular search engines frequently produce these images, which can seriously hinder their prospects and careers.
Removing these images from the Internet, as Professor Lee explains, proves to be as challenging as fighting a multi-headed hydra. Direct requests addressed to the website in question often require paying the website off, and even if the image is removed from one website, it is retained on other websites (often owned by the same entity). Moreover, the images are seldom completely deleted. Even relying on the services of reputation-restoration businesses is a problematic premise; these services are also costly and frequently use a portion of their revenue to pay off the offending website to remove the link. All these avenues, Professor Lee argues, essentially amount to extortion, capitalizing on people’s plight and shame to make a profit.
What role does the law play in assisting people whose images are commodified in this way? A very minor one, apparently. Since in most jurisdictions mugshots are publicly available, mugshot companies and newspapers can rely on the broad First Amendment protections to disseminate them as free speech. Professor Lee reviews a series of recent cases, in which courts have supported the rights of publishers to disseminate these mugshots, absent a compelling state interest to prevent it. Federal protections (such as FOIA and the Privacy Act, and in particular Exemption 7(c)) are unavailable in most cases, as the vast majority of mugshots are taken in state and local proceedings. States vary widely in their application of privacy and access laws.
However, as Professor Lee claims, while these businesses have a right to disseminate the images, they do not have a constitutional right to access them. The mugshots are governmental information, and while courts have recognized a qualified right to access judicial proceedings, this is not an absolute right—and it is unlikely that it would be extended to mugshots.
Professor Lee suggests remedying the problem by recognizing the individuals’ privacy interests in their mugshots. On the federal level, she argues, this could be done by adoption of a federal law that would limit access to the mugshots. On the state level, even in the absence of legislation restricting access to the mugshots, the local law-enforcement agencies can themselves decide to protect these images, and courts can refuse to grant access to them. There is very little merit in arguing that accessing these mugshots advances the public interest in any way, and the destructive effects of allowing access to them can be devastating. There is also little merit in arguing that publicizing the images increases public safety, and we should also keep in mind that, given racial disparities in arrest rates, the practice of publishing the images that result from these arrests disparately affect poor people of color.
Professor Lee’s proposals are thoughtful and pragmatic, and the only thing standing in their path, I think, is good will from local agencies. An interesting question could be whether local law-enforcement agencies benefit, financially or otherwise, from allowing mugshot-websites access to the images, and if so, whether these benefits should be countered via coercive laws or via a changed incentive structure. If the publication of these images works to the advantage of law enforcement as well as private entrepreneurs, we might consider measures beyond appealing to these agencies’ sense of fairness.