A recent article from the Associated Press describes a troubling new website that posts people’s mug shots and then charges people to have them taken down:
After more than seven years and a move 2,800 miles across the country, Christopher Jones thought he’d left behind reminders of the arrest that capped a bitter break-up. That was, until he searched the Internet last month and came face-to-face with his 2006 police mug shot.
The information below the photo, one of millions posted on commercial website mugshots.com, did not mention that the apartment Jones was arrested for burglarizing was the one he’d recently moved out of, or that Florida prosecutors decided shortly afterward to drop the case. But, otherwise, the digital media artist’s run-in with the law was there for anyone, anywhere, to see. And if he wanted to erase the evidence, says Jones, now a resident of Livermore, Calif., the site’s operator told him it would cost $399.
The practice seems outrageous, but is there any way the law can address it? The First Amendment protects people in publishing any information they glean from public records. See Cox Broadcasting Corp. v. Cohn, 420 US 469 (1975).
But this practice might run afoul of the blackmails statutes in many states. For example, here’s Kansas’s blackmail statute:
Blackmail is gaining or attempting to gain anything of value or compelling another to act against such person’s will, by threatening to communicate accusations or statements about any person that would subject such person or any other person to public ridicule, contempt or degradation.
There are several interesting issues here.
First, does the practice of this site and others like it violate some blackmail statutes? The statute I quoted above appears to focus on the threat to divulge information, but it is unclear as to whether the information must previously be unknown. The site has already revealed the information; the money is demanded to stop doing so. Blackmail is a relatively rare legal issue these days, and I don’t know offhand how this practice would fit into many blackmail laws. But there definitely seems to be a decent argument that the site’s practices might be quite close to blackmail.
Second, blackmail has always had a tenuous relationship to the First Amendment. Many scholars have debated whether blackmail statutes are constitutional. I won’t delve into this debate here, but it is a very interesting one.
Ultimately, here is one way of viewing the case. If the site were to merely post mug shots, there would be a decent argument that it would be protected by the First Amendment (except for copyright issues, breach of confidentiality issues, and appropriation of name or likeness issues). But the practice of demanding payment to take down the photos seems quite close to blackmail or extortion. Does the First Amendment protect a person in selling his silence? It is one thing to censor a person from speaking, as that leads to less speech and government restriction of ideas and messages. But this case involves an interest in monetizing not speaking — the practices of the site do not increase discourse or the spread of ideas but instead use speech to extract payment to get it to stop. The purpose of the speech isn’t to inform or to communicate, but to create a nuisance that people will pay to abate. The law might be able to restrict the charging of money to take down pictures even if it cannot stop the posting of the pictures itself. The prohibited part would be the act of demanding money in exchange for the mug shot takedown rather than any speech.
The photo above is the mug shot of Al Capone from Wikipedia.
Cross-posted at LinkedIn