Collateral consequences for criminal charges have taken on more long-lasting and devastating forms in the digital age. One such collateral consequence is that mug shots once available only to law enforcement are now posted on the Internet for the whole world to see.
You have no doubt seen the face of Maegan Simmons many times in banner ads and memes. Ms. Simmons has the looks of a model or actress, but this photo is not a publicity head shot; it is a mug shot following a DUI arrest. If you are a stunner like Ms. Simmons, your mug shot just might go viral. But this is not just a problem for the beautiful people, who might find their images used for the “attractive convict” meme. If you are weird looking, highly intoxicated or wearing a humorous t-shirt suggesting that you would, in fact, commit the crime in question, you are probably even more likely to have your mug shot spread around the Internet for the amusement of others.
There is really nothing Ms. Simmons can do about people using her likeness as a meme. It is in the public domain and no one is making money from her image. But when a company uses her image as part of an ad campaign without her permission and without compensating her, it creates actionable torts, according to Attorney Matthew Christ, who is representing Ms. Simmons in a law suit against InstantCheckmate.com. Christ explained to The Tampa Bay Times that this is an intellectual property case, stating that if someone is going to use your image to make money, then they need to pay you for it.
I am glad to see Ms. Simmons fighting back. One of the big problems I have with mug shots is that they exist at the time of arrest or booking, and can be posted online before the case is ultimately resolved. Even if charges never lead to a conviction, the mug shot still exists. And even if a judge orders all records of an arrest to be expunged, once the genie has been unleashed on the Internet, it cannot be put back in the bottle.
Fortunately, my Centre County clients, most of whom are Penn State students, need not worry about their mug shots ending up on the Internet. This is because the Centre County Correctional Facility and local law enforcement do not post the name and mug shot of every defendant charged with a misdemeanor, felony or homicide on a publicly available website. The exception would be mug shot photos released in conjunction with a press release, but the police do not typically issue press releases over students smoking marijuana in the dorms or a run-of-the-mill DUI. Such low level crimes are newsworthy only if the defendant is a celebrity or local character of note, such as a school principal, distinguished professor or Penn State athlete.
Matt McClenahen is a criminal defense lawyer in State College, Pennsylvania, home of Penn State University.