Civil Rights Law & Policy Blog

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Wednesday, May 7, 2014

First Amendment right to post mugshots online?

The First Amendment is the subject of considerable dispute, particularly as it relates to freedom of speech. The Founders left very little guidance as to what qualifies as speech, and thus SCOTUS and academics have been left to debate the merits of certain conduct as speech under the First Amendment on mostly theoretical grounds. Technological advances have drastically changed methods of communication, which, in turn, have made these inquiries even more difficult.

The Internet of course has increasingly drawn the attention of First Amendment scholars. The constitutionality of laws criminalizing revenge porn, for example, appears increasingly as the subject of debate. Many believe that these laws can be written narrowly enough so as to avoid infringing on otherwise valid First Amendment activity, while others feel that the very existence of such laws inevitably chills speech. 

Similarly, the propriety of posting mugshots online is being questioned, which some websites claim is protected First Amendment speech. The websites that publish the mugshots usually don't differentiate between persons convicted of crimes and those whose charges were later dropped. As Fox News's Dan Gallo reports:

At least seven states...recently pass[ed] laws to restrict websites from profiting off mugshots: Georgia, Illinois, Texas, Utah, Oregon, Colorado and Wyoming. Marc Epstein, a lawyer for Mugshots.com, told Fox News that such laws are unconstitutional and violate his client's First Amendment rights.

 

"Unpopular speech, unpopular actions are generally protected under the First Amendment, provided they're not illegal in other ways," Epstein said. "It's uncomfortable, perhaps. But it doesn't rise anywhere near the level of extortion. We threaten nobody."

 

Consumer attorney Brian Kabatek is suing one of the websites, which he accuses of legalized extortion.

 

"They're putting it out there not for some great public purpose," he said. "They're putting it out there for economic gain. And that's the only reason they're doing this."

http://lawprofessors.typepad.com/civil_rights/2014/05/first-amendment-right-to-post-mugshots-online.html

First Amendment, Freedom of Speech | Permalink

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