Getting Mugged: Lawmakers, record-keepers aim to curtail mug shot publishers, but questions about free speech, public records access arise

Lawmakers are expected to take up a bill this session aimed at giving South Carolina residents ammunition against websites that publish arrest mug shots and then demand hundreds of dollars to remove the embarrassing photos.

The bill is part of a growing backlash against the cottage industry of mug shot publishing, which Richland County deputy attorney Brad T. Farrar calls “legalized extortion.” But whether the legislation is constitutional, or even enforceable, is a matter of debate.

Republican Sen. Paul Thurmond, a criminal defense lawyer in Charleston, said he sponsored the bill after seeing clients “held hostage” by mug shot publishers who would request upwards of $400 to take down a single arrest photo, regardless of whether the charges ultimately were dismissed or expunged.

Thurmond wants to amend the current state law that requires law enforcement agencies to destroy arrest files after a person has been found not guilty or the charges have been dropped, by adding language that places similar requirements on mug shot purveyors.

Under his proposal, which is modeled after a Georgia law that took effect last year, arrestees who are cleared of wrongdoing can request that their online mugs be removed for free. If a website refuses to comply, its operators face being slapped with a misdemeanor that carries a $500 fine. They also would be exposed to civil action.

Sen. Larry Martin, a Pickens Republican who chairs the Senate Judiciary Committee, called the legislation’s intent “reasonable,” but expressed reservations about its criminal component, saying that imposing such a penalty “could be a little problematic.”

“You probably want to give the person the right to a cause of action as opposed to going to a magistrate and swearing out a warrant for someone’s arrest,” he said. “I’m not sure how I feel about that.”

Martin added that most mug shot websites are based far outside the borders of South Carolina and, in some cases, the country, meaning that their operators would be beyond the state’s reach.

“The practical matter of dealing with the Internet is there’s really not much you can do on a state law basis or even a federal law basis,” he said. “This is one of those issues that clearly demonstrates that state and federal law have some degree of difficulty in addressing modern-day technology.”

Requests denied

Rather than waiting for legislation to combat mug shot publishers, Richland County decided to stop posting booking photos of inmates on the local jail’s website in fall 2012. Now, the county releases the images, which are considered public government record, only by request and it denies any requests from publications that deal solely in mug shots.

County councilman Seth C. Rose, a former prosecutor who practices criminal defense at McGowan, Hood & Felder in Columbia, pushed for taking down the jail’s online database of mugs for the same reason that compels Thurmond in his effort to change state law.

“I kept having the same conversation with my clients and their parents: ‘Now that the charges have been dropped, how can I get the photo off?’ ” Rose recalled.

He added that one such client, a sorority member arrested for underage drinking with a fake ID, was mortified to discover that her arrest photo had ended up on a website featuring “mug shot hotties.”

“Even if you’re falsely accused and the charges are dismissed or you’re found not guilty, these websites still extort you for money. They’re charging $499 a picture,” Rose said. “Typically, my clients would pay one site, and two weeks later their picture would pop up on a different site. This is a national epidemic.”

Farrar, Richland County’s deputy attorney, said regular citizens, lawyers and “reputable media outlets” are not being denied access to the jail’s mug shots. But his office rejects requests from websites like Mugshots.com, one of the biggest players in the business, based on an exemption to the state’s Freedom of Information Act that prohibits the use of public information for commercial solicitation.

“We do some inquiring and if it’s going to be used for no other purpose than commercial solicitation, then that’s a problem,” he said. “The FOIA is not a tool for people to irresponsibly use the public record.”

Farrar added that not one mug shot publisher had challenged the county’s policy.

“We find that that’s the last thing they want to do,” he said. “They don’t want people to know who they are.”

‘Doesn’t ring right’

Richland County’s tactic appears to have been effective. Mugshots.com, a self-styled “Google for mugshots,” no longer posts photos of people who have been arrested in the county. Farrar also said that his office has stopped receiving records requests from mug shot publishers. However, mugs from other counties in South Carolina, North Carolina and just about every other state in the country still can be found on the site.

Attempts to talk with someone at Mugshots.com, which is based in the West Indies, were unsuccessful. A staffer who answered an 800 number listed on the site for an “unpublishing submission service” said he worked for a third-party contractor and could not talk about Mugshots.com.

The website asserts on a FAQ page that it is not violating copyright or privacy laws and has a legitimate public interest in publishing mug shots. “Greater openness and transparency are the foundation of strong government of the people,” it states.

The S.C. Bar Association’s attorney, Jay Bender, could not be reached for comment.

Meanwhile, media lawyer John A. Bussian III, who lobbies for the N.C. Press Association and has a practice in Raleigh, said he was unaware of any mug shot-related legislation pending in North Carolina.

“Knock on wood,” he said, “but so far there’s no sign of anything like that.”

He Bussian sees free speech problems with the Palmetto State bill and Richland County’s public records policy that disfavors mug shot publications, noting that such steps could have a negative effect on the mainstream publishing industry; many newspaper and TV news websites feature mug shot galleries.

“I would find that it’s sort of amazing that they [Richland County] would draw a distinction between one news organization and someone else that is in the business of aggregating mug shots for commercial purposes,” Bussian said. “If they’re in the business of publishing government records, that doesn’t change their right to publish those records.”

As for the pending legislation, Bussian said a publisher cannot be forced to take down something that has already been published or pull issues off news racks.

“Just because it’s a website doesn’t change the underlying First Amendment issue,” he said. “All this doesn’t ring right to me in terms of free press rights. I would hope that we don’t see a wave of this stuff.”

Follow Phillip Bantz on Twitter @SCLWBantz