Jun 262013
 June 26, 2013  Court, Laws, Online, U.S.

Back in December, I posted a link to a news story about a lawyer in Ohio who sued a web site that was charging people to remove their mug shots from the web site. At the time, I wrote:

I don’t know if this is the first lawsuit of its kind, but I’m surprised I haven’t seen such lawsuits before now. I know it feels like extortion, but is there actually a legal prohibition against charging a fee to remove a public record from your web site? If so, what is it?

Dan Solove has a post about the issue on Concurring Opinions that tries to address the same question I posed.  He writes:

First, does the practice of this site and others like it violate some blackmail statutes? The statute I quoted above appears to focus on the threat to divulge information, but it is unclear as to whether the information must previously be unknown. The site has already revealed the information; the money is demanded to stop doing so. Blackmail is a relatively rare legal issue these days, and I don’t know offhand how this practice would fit into many blackmail laws. But there definitely seems to be a decent argument that the site’s practices might be quite close to blackmail.

Second, blackmail has always had a tenuous relationship to the First Amendment. Many scholars have debated whether blackmail statutes are constitutional. I won’t delve into this debate here, but it is a very interesting one.

Ultimately, here is one way of viewing the case. If the site were to merely post mug shots, there would be a decent argument that it would be protected by the First Amendment (except for copyright issues, breach of confidentiality issues, and appropriation of name or likeness issues). But the practice of demanding payment to take down the photos seems quite close to blackmail or extortion. Does the First Amendment protect a person in selling his silence? It is one thing to censor a person from speaking, as that leads to less speech and government restriction of ideas and messages. But this case involves an interest in monetizing not speaking — the practices of the site do not increase discourse or the spread of ideas but instead use speech to extract payment to get it to stop. The purpose of the speech isn’t to inform or to communicate, but to create a nuisance that people will pay to abate. The law might be able to restrict the charging of money to take down pictures even if it cannot stop the posting of the pictures itself. The prohibited part would be the act of demanding money in exchange for the mug shot takedown rather than any speech.

 I’m glad to see that I’m not the only one who sees this as a complex issue.  Adam Geller of the Associated Press provides additional perspective and views on the controversy, here.

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