St. Thomas Law Review

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This paper takes the position that American people’s Due Process rights are violated when their mugshots are digitally disseminated prior to a conviction. The press’s First Amendment rights are not violated by not having access to pre-conviction booking photos because the press can report on other publicly accessible information. The same conclusion can be made relating to private citizens and private companies who assert that their Freedom of Speech rights are violated by not having access to obtain, publish, and disseminate pre-conviction mugshots. Existing scholarship has addressed the issue of publishing mugshots with privacy arguments related to the Freedom of Information Act (FOIA). However, this Article, for the first time, addresses the issue solely in the context of the Constitution, evaluating issues from the 1st Amendment, 4th Amendment, 5th Amendment, 6th Amendment, 8th Amendment, and 14th Amendment. This paper will specifically examine the constitutional issues which arise from publishing mugshots in the age of screenshots and digital media – and not the privacy issues concerned with the matter. In doing so, Part I of this paper will provide a brief history of the utility of mugshots and rise of mugshots in the digital age. Part II of this paper will analyze the claims of Due Process violations when the people, police departments, the press, and private companies publish mugshots. Part III of this paper will analyze the First Amendment issues attached to publishing mugshots in the digital age – particularly Freedom of Press and Freedom of Speech positions on both sides of the issue. Part IV of this paper will analyze a court case’s Eight Amendment violation claim. Part V of this paper will highlight recent laws that addressing publishing mugshots in different U.S. states. Lastly, Part VI of this paper will provide recommendations rooted in the constitutional interest of the American people.