What legal arguments have defendants invoked to avoid booking photographs or public processing, and how have courts ruled?
Executive summary
Defendants seeking to avoid booking photographs and public processing have advanced a mix of constitutional and statutory arguments — most prominently privacy and due‑process claims, First Amendment challenges to government disclosure obligations, and creative uses of copyright and state consumer statutes — and courts have reached mixed results, sometimes protecting detainees’ privacy while other times upholding public‑access principles [1] [2] [3]. Recent appellate decisions, most notably a 9th Circuit ruling, have pushed back against routine online posting by law enforcement as actionable pretrial harm, even as Supreme Court precedent limits the ability of states to broadly bar truthful publication [4] [5].
1. Privacy and FOIA/records‑law balancing: arguing a protectable private interest
A common defense strategy is to argue that booking photos, though gathered for law‑enforcement purposes, carry a cognizable privacy interest that outweighs the public interest in disclosure, so agencies may withhold them under records‑law balancing tests; federal appellate panels have accepted that approach in some contexts, and the Justice Department successfully resisted release of federal mugshots under FOIA in a 2016 decision by citing lack of public safety need [3] [2] [1].
2. Due process and pretrial punishment: the 9th Circuit’s recent pushback
Litigants have framed public posting of mugshots as a form of impermissible pretrial punishment that stigmatizes presumed‑innocent people; in one notable case a plaintiff who had his mugshot posted after charges were later dismissed won in the 9th Circuit, which characterized routine online publication by a sheriff’s office as creating actionable pretrial harm and unconstitutional punishment, a ruling that has prompted some agencies to stop publishing photos [4] [6].
3. First Amendment counterweight: publishers’ and the press’s defenses
Defendants and third‑party publishers counter with First Amendment arguments, pointing to Supreme Court precedent that protects publishing truthful information lawfully obtained from public records and that criminalizing publication of such truthful facts is unconstitutional; media‑law scholars and cases therefore caution against broad statutes that block release or penalize publication, and courts have struck down state efforts that unduly burden press access [5] [7].
4. Statutory and tort routes: consumer, privacy and commercial‑exploitation claims
Plaintiffs have also used state consumer‑protection laws, invasion‑of‑privacy torts, and targeted statutes restricting commercial “pay‑to‑remove” mugshot sites to secure relief; several states have enacted laws requiring removal or forbidding commercial extortion schemes, and litigants have won settlements and statutory remedies against exploitative publishers in state and federal courts [8] [9].
5. Creative tools: copyright, DMCA and cross‑border limits
Where other doctrines faltered, lawyers have tried unconventional tools such as copyright takedowns to remove photos from commercial sites and DMCA mechanisms to reach foreign hosts, though enforcement is uneven and sites outside WIPO/jurisdictional reach remain difficult to compel [3].
6. What courts have not uniformly done: no single national rule
Despite pockets of protection — federal appellate rulings recognizing privacy interests, a 2016 FOIA outcome for federal mugshots, and the 9th Circuit’s pretrial‑punishment finding — courts have not created a nationwide bar on publishing booking photos, and many state courts and agencies continue to treat mugshots as public records under traditional access rules; where constitutional free‑speech limits or state law protections collide, results vary by jurisdiction and by whether the defendant seeks relief against a government agency or a private commercial publisher [2] [10] [11].
7. Practical impact and open questions
The jurisprudence leaves open significant questions: how courts will reconcile Supreme Court precedents protecting truthful publication with the emerging privacy/due‑process line drawn by some circuits, whether more circuits will follow the 9th Circuit’s approach to online postings, and how legislation regulating commercial mugshot sites will interact with First Amendment constraints — matters that currently produce a patchwork of outcomes rather than a single rule [5] [4] [8].