The United States Constitution is, on the whole, an excellent guardian of the rights and powers any citizen of the country can and should exercise. Foremost among these rights are the right to freedom of expression and freedom of the press, both protected by the First Amendment. These freedoms, it has been argued, are the foundations upon which the American experiment was built and has developed. Ideas, feelings, philosophies and opinions are all held as valuable contributions to a national dialogue that, theoretically, elevates the positive and useful while quieting the negative and dangerous. Practically, however, we know such is not always the case. Over the years there have been many tweaks to the notion of freedom of speech to remove protection for overtly violent or threatening speech or retain protection for controversial activities (e.g. flag burning). There are few among us that would suggest the First Amendment should be used to protect all speech at all times — certain limitations are reasonable and even necessary. What causes disagreement is what speech actions should be limited and to what extent.
Into this conversation, I would like to insert the issue of public access to police intake information, more commonly known as mugshots. Crime is, without question, a public matter. However, I question the motives of any organization, particularly a news agency, that feels the need to publish intake photos, names and charges immediately after arrest. I am aware
that this information drives traffic and ad revenue to otherwise cash-strapped local newspapers’ websites, but is there any true usefulness in this practice? What true need does the public have that requires compromising, embarrassing and potentially damaging images and information be made available? Why is this information searchable for up to 90 days, in which time charges might have been dropped or any number of other outcomes might have occurred that would nullify any public safety defense? We can all appreciate the boilerplate disclaimer that reminds readers that the individuals presented are presumed innocent until otherwise found, but there can be no doubt such a message is perfunctory and has little to no impact on actual opinions and actions. In most cases, any association with arrest or the legal system is sufficient to alienate one from family or remove one from a job. The niceties and abstractions of “due process” are, whether consciously or not, often forgotten.
I am personally familiar with a situation whereby an otherwise model employee was quietly terminated from her job after appearing on just such a page. The incident was minor, completely unrelated to her work and ultimately dismissed by the court, but because of the public’s supposed right to know, she was publicly and professionally disgraced in the First Amendment’s name. An appeal to the newspaper to not publish the information was flatly denied; the editor apparently felt it was his duty and pleasure to place such information into the public forum, regardless of the consequences. I defy anyone who suggests that mugshots, couched in the respectability offered by newspapers, does anything to forward justice, inform the public or exercise the real goals of the First Amendment. While I can understand the rationale offered by news agencies, I also dismiss it as a weak attempt to justify what is, at its heart, merely an invitation to witness the circus that is the American justice system.
This is not a call for government intervention and state-sanctioned limiting of press agencies. What this is is an appeal to newspapers, television stations and the conglomerates that own them to consider the true purpose of these mugshot galleries? Are they intentionally malevolent abuses of First Amendment rights? I do not believe so. Are they symptoms of a much larger cultural sickness brought on by social media and the devaluation of images? I believe so. Is it important for criminal activity to be reported and police activity to be transparent? Of course it is. Is it critical for anyone to know that their neighbor was arrested for simple procession with zero additional context? I say no. Publishing mugshots is, in a way, a continuation of the public shaming tactics of the distant past. Mugshot pages allow for public ridicule and judgement outside the normal course of justice and law; they are direct descendants of the stocks and whipping posts of medieval and colonial times and we would do well to let them go.