SADOW: The Mugshot Bill Isn’t Bad – In Fact, It Ought To Go Further

It’s a good first step, but Louisiana needs to go further when it comes to dissemination of booking photographs of arrestees.

Last week, HB 729 by Democrat state Rep. Royce Duplessis advanced out of committee. The bill would change public records law to shield booking mugshots of arrestees from release, except under circumstances that would aid law enforcement agencies in corralling a dangerous individual, from media outlets that require payment to remove a mugshot from publication. LEAs would be prohibited from disseminating this information to outlets suspected of doing this.

Duplessis and other legislators argued that arrestees entered into a correctional facility have a presumption of innocence and reputational damages could occur regardless whether ultimately no conviction related to that arrest happened. They also argued media had plenty of other online sources to grab photos of many arrestees (or could do it the old fashioned way, send out a photographer) and only the mugshot would be withheld, with all other arrest information still available.

There seemed some conceptual confusion about the bill, which in its current language applies only to outlets that act in what was called an extortionist manner, that Duplessis didn’t really address. Other legislators as well as witnesses testifying also didn’t appear clear on whether outlets that publish these could be denied.

As written, the bill would not preclude something like the Monroe-area Justified Newspaper, whose content exclusively is mugshots, from continuing to operate because it doesn’t fall under the bill’s definition of an excludable outlet: “a publication that requires the payment of a fee or other valuable consideration in order to remove or delete a booking photograph from the publication;” Justified declares it does not accept payment for picture (or text) removal because it doesn’t remove any for any reason.

Thus, the bill needs to go further. Almost half the states have put on the books something like this proposal, but a few go further. Some leave it up to LEAs to decide whether to release the shots – the federal government through the Marshals Service doesn’t – but perhaps the best model is Florida’s law passed last year that excludes provision to a person or entity whose primary business model is the publishing or dissemination of such photographs for a commercial purpose or pecuniary gain.

This approach, for example, not only would invalidate the pay-for-removal outlets from publishing mugshots, but also would prevent publication by something like Justified since it derives its revenue primarily from this activity. However, it likely would permit something like Shreveport’s The Inquisitor/Focus SB because, while it devotes pages to mugshots, it also provides other unrelated content.

Legislators should focus on the larger point: restricting commercial entities whose primary business model takes advantage of government-provided records, the release of which adds nothing to a broader public purpose inherent to publicizing arrest records, catering only to a prurient interest that too invasively impacts people’s expectation of privacy. As an example, consider The Inquisitor/Focus SB’s (on the former’s side) provocative masthead motto: “If you don’t want it printed, don’t let it happen,” which assumes guilt in the first place and entirely precludes the possibility that an arrestee is innocent, if not mistakenly arrested for someone else.

In its current form, the bill wouldn’t do much to suppress dissemination of mugshots, just remove the most blatantly exploitative actors from the business. Even a stronger version such as Florida’s would leave plenty of room for outlets with at least some commitment to informing the public rather than merely titillating it free rein to publishing mugshots. Legislators shouldn’t fear strengthening this kind of bill and enacting it.

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