Archive: First Amendment and Privacy

Exposed: How Mugshots Expanded Government Secrecy

By Amber Lee, Online Editor (Vol. 16)
March 31, 2017


Case History

Since its passage in 1966, the Freedom of Information Act (FOIA) offered journalists and the general public a means of investigating the government. The power of FOIA, however, is not unlimited. The investigative statutory tool comes with limitations, including an exception preventing private citizens from exploiting the power of the federal government to investigate and expose one another. FOIA’s exemption (b)(7)(c) allows agencies to withhold disclosure of “information compiled for law enforcement purposes” when producing such documents “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

In 1996, the Sixth Circuit held that “no privacy rights are implicated” by agency disclosure of mug shots once a defendant has appeared in open court. Other circuits determined that  releasing mug shots did implicate privacy interests; however, their rulings were ineffective. The Department of Justice provided guidelines instructing the agency not to release photos unless the release serves a “law enforcement purpose” to attempt to provide the privacy other circuits demanded. However, the Sixth Circuit ruling allowed disclosure, so the federal government must disclose mug shots for FOIA requests submitted within the Sixth circuit. This loophole not only allowed journalists and the public access to booking photos, but also, unfortunately, gave access to the emerging mug shot website industry. This industry profits from posting mug shot photos online and charging a “ransom” to remove the photo.

After other circuits reached the opposite conclusions, the Sixth Circuit recently reexamined their position on privacy interests implemented in relating mug shots in Detroit Free Press, Inc. v. United States Department of Justice (Free Press II). In this case, the Sixth Circuit reversed course and held that “[individuals] enjoy a non-trivial privacy interest in their booking photos” even after appearing in open court, and therefore booking photos may be exempt from disclosure under 7(c).

Privacy Interests Amplified in Free Press II

After four police officers were arrested for bribery and drug conspiracy, the Detroit Free Press requested mug shots through FOIA, but the U.S. Marshal Service denied their request citing exemption 7(c). The newspaper sued to gain access to the photographs and while the district court agreed with the newspaper’s contention that the mug shots do not fall within FOIA’s privacy exemption, it stopped short of ordering disclosure. The Sixth Circuit reversed the district court’s determination and concluded that individuals have a nontrivial privacy interest in their mug shots and, under FOIA, those interests must be balanced against the public interest in disclosing the information.

Despite earlier cases holding that the mere possibility that information might embarrass is not sufficient to establish a personal privacy interest, the Sixth Circuit in this case argued that Exception 7(c)’s conception of personal privacy encompasses “[e]mbarassing and humiliating facts—particularly those connecting an individual to criminality.” Judge Cook explained that mug shots fall within the realm of “embarrassing and humiliating information” because they are “snapped ‘in the vulnerable and embarrassing moments’ immediately after [an individual is] accused, taken into custody, and deprived of most liberties.” The Sixth Circuit also, pulling from the Supreme Court rationale in National Archives & Records Administration v. Favish, concluded that courts must also consider the consequences of disclosure in this era of technology in determining the statutory privacy interests protected by FOIA exemptions.  Judge Cook wrote that at the time Free Press I, the 1996 case holding no privacy rights were implicated by releasing mug shots, was decided at a time before Google when mug shots “appeared on television or in the newspaper and then, for all practical purposes, disappeared.” However, with the infinite memory of the Internet, the Sixth Circuit argued that this reasoning is no longer persuasive. The Sixth Circuit also rejected arguments in favor disclosure, stating that public disclosure interests did not come close to the privacy interests at stake by releasing that information.

Public Disclosure Interests Overlooked

Whatever the Sixth Circuit’s motivations for reversing course in Free Press II, the court’s attempt to remedy any privacy interests violated by releasing mug shots impedes the public’s ability to be informed on newsworthy criminal matters.

The Sixth Circuit grossly over exaggerated the privacy interests implicated in releasing booking photos from individuals already revealed in open court.  When  law enforcement routinely makes booking photographs available to the press, the public expects photographs to always be accessible and grows suspicious when withheld. The Free Press II dissent discusses a variety of real scenarios highlighting the public importance of disclosure, including instances of mistaken identity, impermissible profiling, and arrestee abuse.

The dissent argues that booking photos illustrate which populations the government prosecutes and giving authorities the discretion to determine when and which photos to release creates the potential for, or perception of, bias. The dissent writes, “the release [of booking photos] may raise questions about prosecutorial decisions, enabling the public to detect and hold to account prosecutors who disproportionately charge or overlook defendants of a particular background or demographic.”

Booking photos, according to the dissent, also help the public learn how the government treats detained individuals. For example, the dissent points to the release of booking photos that showed an arrestee’s bloodied and scratched face prompting local media to question the circumstances of his arrest. The publication of another mug shot showed an arrestee with two black eyes prompted the public to express outrage for suspicion that police used excessive force.

While these public disclosure interests may not apply to every scenario, the Sixth Circuit’s seemingly dismissive tone to these “phantom” public disclosure interests may set dangerous precedent. In the future, this case will be cited as a reason to dismiss public disclosure arguments that may actually outweigh the privacy interests in not being embarrassed or humiliated.

Coping With Unprecedented Connectivity: Citizens and Police

By Alexander (Alex) M. French, Staff Member (Vol. 14)
May 25, 2016

On April 4, 2015, a North Charleston Police Officer shot and killed Walter Scott. Michael Shlager, the responding officer, reported that he pulled Scott over for a broken tail light. Scott fled on foot and Shlager pursued. Shlager claimed that Scott grabbed Shlager’s Taser and that Shlager shot Scott in self-defense. A bystander’s video showed a conflict far different than Officer Shlager’s report. The video shows Officer Shlager shooting an unarmed Walter Scott in the back as Walter Scott ran away. The video also shows the officer walk back to where the scuffle occurred, pick an object off of the ground and drop it near Scott’s body, many believe this unidentified object was Shlager’s Taser. The sad case of Walter Scott and Michael Shlager shows both the growing importance of video footage as evidence and as a means to hold police officers accountable for their misdeeds.

Most legal conflicts between police departments and citizen-journalists follow a very similar pattern. First the officer arrests the recording citizen for harassment, stalking, or wiretapping.  Second, the police department drops or reduces the charges. Finally, the journalist brings a 42 USCA 1983 civil lawsuit against the police department for violating their First Amendment rights. Most of the case law on this subject comes from 42 USCA 1983 cases on appeal. See e.g.,Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Gravolet v. Tassin, 2009 WL 1565864 (E.D. La. 2009); Robinson v. Fetterman, 378 F. Supp. 2d 534, 538 (E.D. Pa. 2005);.

When an officer arrests a person that is recording him, the would-be journalist’s First Amendment rights are immediately implicated.  When a citizen records a police officer, two legal questions emerge: (1) to what degree are the citizens’ First Amendment rights protected and (2) how reasonable are the officer’s subsequent actions? These questions suggest that one of the problems faced by both police officers and citizen journalists is lack clarity, which can result in the arrests of citizens and bad publicity for police departments. This blog post suggests a solution to strengthen citizens’ First Amendment liberties and to clarify when citizens have a right to record police.

Journalists Interest vs. Law Enforcement Interest

The ubiquity of smart phones in the U.S. creates a universe of opportunities for society, including the opportunity to hold police accountable for their inappropriate actions. The constant presence of recording devices also creates the chance to hold criminal defendants accountable for their actions and exponentially increases the amount of objective evidence admissible in court. However, this opportunity for public accountability comes with its own attendant anxieties and burdens, which usually fall heavily on police officers.

The current state of the law regarding the recording of police officers is that a citizen-journalist has some First Amendment right to record police officers in the pursuit of their public duties, though courts are split on the extent of that right.  In some jurisdictions, the journalist must be “peaceful” and his recording not be performed in the “derogation of any law.Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 1999). In others, the right to videotape public police activity is “subject to reasonable time, manner and place restrictions[.]” Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).  Finally, despite any First Amendment concerns, “police may take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations.” Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 607 (7th Cir. 2012). These limitations are considered to test if an officer was justified in arresting a journalist.

Whenever a police officer and a journalist interact, there are many interests at play. On the one hand, the journalist has some First Amendment right to the information he gathers (especially if that information is about the government), see Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 597-598 (7th Cir. 2012),  and an interest in holding citizens and officers accountable. On the other hand, the State has an interest in protecting the privacy and safety of its citizens and police officers. If the law hews too close to the government’s interests, then some police officers will suppress journalistic activity for convenience sake. If the law hews too close to the journalists’ interests, then police effectiveness could be impaired as soon as a citizen pulls out a cell phone. Further complicating this problem is the reality that smart phone ownership is increasing. Any attempt to “put the genie back in the bottle” will be, at best, a waste of scarce law enforcement resources.

The Consent Requirement

Most state wiretapping and eavesdropping laws have a positive consent requirement that makes them especially susceptible to abuse by police. For example, in North Carolina, a person is guilty of wiretapping if they record a conversation between two people “without the consent of at least one party to the communication[.]” Under this statute, if a third party bystander records a confrontation between an officer and a citizen, the bystander has committed a crime and may be arrested at the officer’s discretion. Unscrupulous officers can easily use this law as a justification to arrest almost anyone who records a police action and seize their camera. In order to prevent unnecessary conflicts between journalists and police, state legislatures should presume consent to recording when a citizen-journalist is recording the public activities of a police officer in an antagonistic situation with a citizen.

Adding the aforementioned provision to police recording statutes would have three benefits. First, the addendum would protect citizen-journalists in the cases in which the citizen pulls out his camera and records an officer arresting a third party, because the citizen-journalist would be presumed to have consent to record the interaction and the wiretapping statute would not apply.  Second, this addendum would protect citizen-journalists in cases of secret recording of blatant police misconduct, as consent would be presumed in those cases as well. Finally, this addendum circumvents any situations in which the police are restrained in their work, because the presumption of consent is shattered as soon as the police officer requests that a journalist stop recording his interaction.

We are all facing the reality that our actions could be recorded and then posted to YouTube.  The First Amendment implications regarding citizen-journalists recording police officers are only a natural extension of that reality. Given the ambiguity surrounding citizen-journalists’ First Amendment rights and police officers’ authority, conflict is inevitable.  The best outcome for all stakeholders (judge, police, or journalist) is to limit legal conflict through legislative amendments to current wiretapping and eavesdropping statutes.

Celebrity Endorsed Anti-Paparazzi bill Makes Hawaii More Attractive for High-Profile Homeowners, but Threatens First Amendment Protections

By Satie R. Munn, Communications Editor (Vol. 12)
February 28, 2013

With awards season underway, the paparazzi are out in full force, trying to capture the trophy winning celebrities in their fanciest garb. However, celebrity–friendly states, most recently Hawaii, are fighting back against invasive paparazzi techniques in order to protect their famous residents. The Hawaii Senate Judiciary Committee recently passed the “Steven Tyler Act,” an anti–paparazzi bill. According to the Reporters Committee, the bill has successfully passed its first hurdle to becoming law, and it would take effect on July 1, 2013.

Aerosmith’s lead singer, Steven Tyler, purchased a $4.8 million dollar home on Maui in January, 2012. Tyler, fed up with the paparazzi’s antics, initiated the bill and testified before the committee saying that, although dealing with the paparazzi in public was “part of the deal-io,” “when I’m in my own home and I’m taking a shower or changing clothes or eating or spending Christmas with my children, and I see paparazzi a mile away, shooting at me with lenses this long . . . you know, it hurts.”

The proposed bill, which, was amended to incorporate language similar to a California statute, prohibits anyone from using images “in a manner that is offensive to a reasonable person” of someone “engaged in a personal or family activity.” The Hawaii legislature found that “sometimes the paparazzi go too far to disturb the peace and tranquility afforded celebrities who escape for a quiet life.” Therefore, the stated purpose of the Steven Tyler Act “is to encourage celebrities to visit and reside in our state by creating a civil cause of action for the constructive invasion of privacy.”

Opponents of the bill criticize its scope and vagueness, and claim that it violates photographers’ First Amendment rights. The National Press Photographers Association, joined by 14 other media organizations, submitted a letter (PDF) to the Hawaii legislature protesting the measure. Their main argument is that the bill “imposes civil penalties of alarming breadth and burdens substantially more speech than necessary to advance a compelling government interest . . . while we recognize the right of privacy, we oppose a broadening of these protections by abridging the clearly established tenents of First Amendment Jurisprudence.”

Josh Blackman, an assistant professor at the South Texas College of Law, and Ilya Shapiro, a Senior Fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, wrote an editorial for USA Today, citing several reasons why the Steven Tyler Act has significant constitutional defects.

One of Blackman and Shapiro’s main concerns is that the statute is intentionally vague, which allows courts to construe the statute broadly, which in turn “limit[s] the ability of the press to report the news.” Furthermore, the bill does not limit punishment to photographers; anyone, including journalists, frenemies, or tourists who pulls out their iPhone to take a celebrity picture, would be liable. Even more, the illegal act is not limited to photography. Someone can be sued for the simple act of planning to take a photo, make a recording, or paint an image in the future. The bill simply states, “it is not a defense that no image, recording, or physical impression was captured or sold.”

Blackman and Shapiro continue to argue that courts would have the authority of “prior constraint” to “not only stop the initial publication of a photograph, but to issue orders against future reproductions of the same photograph.” Historically, prior restraint orders have rarely survived strict scrutiny, even when national security issues are concerned. Blackman and Shapiro use the Pentagon Papers as an example. In 1971, the Supreme Court found that the government could not prevent the New York Times from publishing the Pentagon Papers even when they contained pertinent classified information relating to the Vietnam War. It seems extremely irrational to afford celebrities greater privacy protection than classified government documents.

Other celebrity supports of the Steven Tyler Act, including Brittany Spears and Mick Fleetwood, founder of the band Fleetwood Mac, sent a statement to the Hawaii committee claiming that if the bill were passed, “more celebrities would find Hawaii an attractive destination, which would be a boom to the local economy.”

The paparazzi serve to quench the constant thirst of Americans who desire celebrity news 24/7. The battle of celebrity privacy vs. invasion by the paparazzi is not a new one. However, the Steven Tyler Act, with its vague wording and extreme penalties for not only paparazzi, but also ordinary citizens, crosses the line of reasonableness. It violates the First Amendment freedom of the press by burdening their speech to a degree that is unnecessary to advance any compelling government interest. The Steven Tyler Act affords superfluous protection to celebrities who have willingly put their lives in the public sphere. As Ken Paulson, President of the First Amendment Center, recently wrote, “Celebrities have exactly the same rights as all citizens – and no more.” Paulson goes on to say that “[i]n a free society, news gatherers and fans alike can take photos of public figures and private citizens in public places. They have to do that lawfully and without endangering others.” Hawaii’s stated purpose for the bill, “to encourage celebrities to visit and reside in our state,” is a self-serving and trivial motive that does not justify the wide–scale intrusion of First Amendment rights that would take place as a result of passing the Steven Tyler Act.

Photography Is Not a Crime: The Year of the Citizen Journalist

By Sidney L. Fowler, Chief Article & Note Editor (Vol. 12)
November 25, 2012

Carlos Miller’s recent trial victory represents another small step in the successful assertion of the First Amendment rights of citizen-journalists. Miller, who runs the website Photography Is Not A Crime, was charged with resisting arrest when he refused to stop filming and evacuate an area during an Occupy Miami event. While the American Civil Liberties Union states that police only have the right to stop an individual from photographing in a public space when the photographer’s activities “are truly interfering with legitimate law enforcement operations” a quick glance down Miller’s website shows that police are quick to use charges of resisting arrest to confiscate then delete digital images.

As the Supreme Court noted in Dun & Bradstreet v. Greenmoss Builders (472 U.S. 749 (1984)), the right for citizens to debate on matters of public concern is “at the heart of the First Amendment’s protection.” In the words of Thomas Jefferson, “our liberty depends on the freedom of the press,” for without a functioning press to alert citizens of governmental corruption and abuses of power, the democratic process cannot properly function. The First Amendment provides freedom for newsgathering activities, but does not allow journalists to break the law in their attempts to gather information. However, it is important for courts to show deference to journalists’ newsgathering activities, including and especially amateur journalists, in order to further this vital social activity.

2012 could well be called the year of the citizen journalist. The Occupy movement was heavily covered by its own members, recording and distributing the movement’s fractious message, and reporting on the repeated clashes with police. The Occupy protests demonstrated the power of amateur reporters to put a check on governmental force; from the initial outcry over the NYC pepper spray incident to a one million dollar settlement over a similar incident at UC Davis. When Oakland police seriously injured Iraq veteran Scott Olsen, citizen journalists provided on-the-scene coverage.

The power of citizen journalists extended far beyond the Occupy movement through 2012. Mitt Romney’s “47% Speech” represented a major milestone in the 2012 Presidential Election. Amateur journalists spotlighted the NYC Police Department’s controversial stop and frisk program by surreptitiously recording, then broadcasting, these encounters over the Internet. Former NYC police officer Adrian Schoolcraft’s recordings, cataloguing misconduct within his department, continued to make national news. In April, The Cato Institute “mainstreamed” independent researcher David Packman’s site Injustice Everywhere, showing a growing acceptance of these alternative and specialized news services.

The need for citizen journalists is greater than ever. Public confidence in the traditional press has been declining since the early 1970s. Many major news agencies filter information through ideological lenses to appeal to target demographics. Major agencies have also reduced the size of their news bureaus in response to declining profits. This creates voids of confidence and coverage that might be more easily filled by independent citizen journalists. At the same time, the expanding complexity of both the government and the private sector increases the need for public awareness. The financial collapse of 2008 demonstrated how entangled private sector industries can be, and the dangers of a lack of oversight. Many sectors of the US government have greatly expanded since 9/11.

Given the growing power of citizen journalists, it’s unsurprising that authority figures sometimes overextend their power and restrict citizens from recording their activities. It’s easy to confiscate a digital camera, delete images, and avoid negative publicity. Citizen journalists frequently lack professional training, and on many occasions genuinely interfere with police business. Overall, police tolerance of amateur journalists during the Occupy protests and other recent events is commendable. However, courts should be wary of situations when “stop filming” turns into “resisting arrest;” often the filming does not constitute legitimate interference with police activities. To protect the First Amendment right to gather information and debate matters of public concern, courts should show deference to citizen journalists and at the very least, not hinder this fledgling movement from gaining traction.