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"Busted Paper" and other mugshot magazines: Why they are—and will likely remain—legal
The faces stare up at you from the folded tabloid newspaper on sale at the your nearest convenience store: hundreds of photos of people at what might be the worst moment of their lives, available to anyone with a dollar. Busted Paper, on sale in the Twin Cities for the last four years, is just a small part of a new and rapidly growing industry dedicated to publishing booking photos, commonly called mugshots, in tabloids and online.
The Minnesota edition, published twice monthly, includes 17 pages of mugshots from Hennepin, Ramsey, Anoka, and Dakota counties.
Scattered among the local photos are crime-related articles ("Florida Man Stabs Wife Over a Hamburger") and mugshots designated for special attention in features like "Hottest Chicks" and "Muggin’ Maniacs." There is even a recipe of the week. While a full page is devoted to the advantages of advertising in Busted, most editions contain no advertising. “We’re in a lull,” says Ryan Chief, the tabloid’s co-owner and advertising manager.
Chief says that the Minnesota edition sells 12,000 copies every two weeks and says that his readers appreciate the paper. Nationally, he claims 120,000 readers each week for Busted editions in 20 states. Chief said that the publication can be a public service. “Maybe you own a taxi service and you want to see if anyone is in there, or principal of a school district to see if any of your teachers are there,” he says.
Chief admits, though, that there is more entertainment value than public service in publishing mugshots. “We strike a chord with our readers. If you’re going down a highway and see a police officer handcuffing someone, you slow down and look. The most popular TV show is Cops,” he said. “We’re Cops in print.” (In fact, though the documentary series Cops has been a successful program for 23 years, the top-rated show on TV is currently NCIS—a fictional show that is also about cops.)
“My number one customer is a woman 44-55 years old and married. Busted is gossipy and we’ve got the colorful news that you don’t seen in the Star Tribune,” he said.
It’s cheap and easy
Getting the names and faces for these publications is easy and cheap. Laws differ from state to state, but in most states, including Minnesota and Wisconsin, mugshots are considered public information, part of the arrest record. (Information held by the Federal Government has different rules.) For most individuals wanting copies of mugshots, a trip to the county courthouse is necessary. Once there, most counties require the name and birthdate of the arrested person and then charge a small processing fee. In some jurisdictions, to get access to a large number of mugshots the way Busted Paper does, all you need to do is ask for all the mugshots on a particular date or a range of dates and, as public information, it’s free.
Neither Busted Paper nor any of the other similar publications around the country publish retractions when someone is found innocent or if the charges are dismissed—but a mugshot is only a record of arrest, not of conviction, and the paper never implies otherwise.
Busted publishes photos only once (per arrest) and when the paper has been read and tossed away, the photos are no longer available. A disclaimer in Busted says, “We never have and never will accept payment to keep your picture out of the paper,” but the same isn’t true online. That’s a different universe. Keeping the photo available forever and accepting payment is the whole point.
Online: Cash for unpublication
Plug in a name or randomly peruse the photos on many mugshot websites and you can find companies that guarantee to get your booking photo removed from the site or even from the Internet. One, Mugshots.com features a toll-free phone number and a link to unpublisharrest.com, a enterprise that promises to remove from one to four arrests from Mugshot’s site and from all major search engines for a cost of $399 to $1,498. “If you have more than four arrests,” the site advises, “please call us to discuss your special needs.”
The service is not available for everyone, but if a case has been dismissed, the charge is non-violent or a misdemeanor, or if it falls under a score of other exceptions, you can pay the fee and clear your name online. If not, your mugshot could circulate the Internet indefinitely.
Despite this, some jurisdictions across the country which currently do not release mugshots to the public are considering changing policies. In January, Mary Cheh, a D.C. council member, who believes that releasing mugshots is a public safety issue, introduced a bill requiring police there to distribute mugshots to anyone who asks for them. If it passes, the District may join much of the country in facing some tricky legal and ethical questions involving privacy, the First Amendment, transparency in government and the criminal justice system. In New Jersey, there’s talk about releasing mugshots to the public as well.
Mugshots.com includes on its website more than 11,000 words justifying why what they do is moral and legitimate, including strong legal and social arguments about legitimate public interest, open government, even tough love. A lot of people in law and the media agree.
“Many in the criminal justice system are appalled by public access to mugshots in papers and online,” said Jane Kirtley, Silha Professor of Media Ethics and Law at the School of Journalism and Mass Communications at the University of Minnesota.
“Their reaction is to say that it’s an invasion of privacy, there are unintended consequences, that it inflames the public. A lot of the members of the public are appalled, too. People forget that transparency in the criminal justice system is for the protection of the arrested. Secrecy imperils those in custody,” she says. “Public information should be accessible and there should always be a presumption of openness.”
The attitude is similar at the Minnesota ACLU, where executive Director Chuck Samuelson agreed that openness in the criminal justice system is vital for a free society.
“One of the things we had our revolution about in 1776 was secret police work by the government. That’s why we have the Fourth Amendment. Arrests must be public. If they are public, there must be a record of it and the government has to bring you into open court.”
“That’s the good side,” he said. “You don’t want situation like in Argentina. But the bad news is if it’s all public, so is your mugshot.”
The ACLU objects to websites that broadcast all mugshots, said Samuelson. “If a paper wanted to send a reporter to pick up a few copies, pay a fee and the print them, they have to do a lot of work. But, here, all you need is an 18-year old with a computer. Public information is vital, but broadcasting it this way is not.”
For those whose mugshots end up as public entertainment, the mere perception of guilt can damage lives, suggests Bob Sorensen, managing attorney at the Hennepin County Public Defenders Office. Sorensen says that his clients’ lives have been permanently altered after having their booking photos posted on these websites. “This is very disturbing to a lot of people and the consequences for people whose mugshots are included are much wider than most people think,” he said.
Yet, despite some objections, lawsuits to block mugshots from publication using libel, defamation or privacy reasons have, at least so far, have been largely unsuccessful.
Lawyers fight back
Ohio lawyer Scott Ciolek is taking on the mugshot industry from a new angle, claiming that the websites that charge for removal are violating his state’s publicity law. His strategy, he says, is to remove the profit incentive through a class action suit that claims people have a copyright on their own persona. “They’re violating a right-of-publicity getting commercial gain without consent,” he says. “It’s like using a celebrity image on a t-shirt without permission.”
Even if he’s successful, print publications like Busted Paper will be safe. “A tabloid can print these things with the same exceptions that a newspaper has. If they put something in a false light, they print a detraction,” Ciolek said. “A mugshot printed in a tabloid is not defamation, because they are accurately reporting only that these people were arrested.”
Ciolek says he hopes his tactic will be picked up by lawyers in other states. “This might work in Minnesota,” he said.
Another solution would be changing state law to exempt mugshots from public arrest records, to come in line with laws in 10 other states. So far, no such law has been proposed at the Capitol this session.
Some people though, have not been caught up in the controversy. Eric, who asked that his last name not be used, found his own mugshot in the March edition of Busted Paper after being arrested on February 15 in Anoka County. “A coworker brought it in and we were looking at the paper and he pointed to my photo,” he said. “And I said, ‘Hey, I know that guy.’”
“People at work gave me a little bit of a hard time,” he said, “but I was found guilty of disorderly conduct and got sentenced to anger counseling. I’ve just started that. It’s going to work out good.”
©2013 Stephanie Fox