Busted mugs and bad lighting: Balancing First Amendment interests against claims for control of one's identity

Abstract

Booking photographs, also known as "mug shots," have served law enforcement purposes for centuries. Mug shots also dominate media coverage of crime. These images attract readers, as tabloid publications and reputable newspapers alike maintain online databases of mug shots. Observing this popularity, Internet entrepreneurs saw an opportunity to make a profit. Mug shot website proprietors began to "scrape" mug shots from local law enforcement agencies and post the images along with the arrested individual's name and reason for arrest online. To make a profit, sites began to charge fees to remove individuals' mug shots from their websites. This practice sparked several reactions. Search engines like Google changed their algorithms to push mug shot websites further back in results pages. Payment service providers began to refuse to do business with the mug shot websites. State legislatures began passing laws to make this business practice illegal, often restricting or placing conditions on access to once-public mug shots in the process. Individuals began to sue these websites, arguing the sites' use of their mug shots was for a commercial purpose that violated the individuals' right of publicity. In response, mug shot websites have largely adapted their business practices, now only collecting revenue from displaying mug shots alongside advertising or collecting subscription fees.The reactions to mug shot websites' new business practices raise concerns for all content creators. Restricted access to mug shots through a patchwork of state laws about their use and right of publicity lawsuits based on mug shot websites provide a lens through which to view the conflict between individuals' interest in controlling information about themselves and content creators' interest in autonomously deciding what to publish pursuant to the First Amendment. This thesis begins by discussing the history of mug shots, the rise of mug shot websites, and the reactions to these websites. The thesis then traces the legal roots of two of these responses: the legislative approaches to mug shots and the development of the right of publicity. Next, this thesis considers a theoretical framework through which to view both sides of this debate--an individual's autonomy interest in controlling information and a publisher's interest in making autonomous publishing decisions. Then, this thesis considers how courts have resolved the conflict between these positions. Finally, this thesis concludes that going forward, a unified approach, rather than a patchwork of state laws addressing harms that arise from uses of information or a tort claim without an underlying theory, should govern conflicts between individuals and publishers. A unified approach that values the autonomy of both parties best balances the two positions. Courts should consider the totality of the circumstances in which the use of information about an individual appears to determine whether the First Amendment interest outweighs the individual's autonomy interest. Only then will a manageable approach to the use of an individuals' information emerge--one that protects both First Amendment interests and provides meaningful protection to individuals from future harms stemming from new uses of technology.