The Police Department of the small seaside town of Kennebunk, Maine has begun releasing the names of men it has charged with the misdemeanor crime of engaging in prostitution with a local Zumba instructor, Alexis Wright. Is it fair to release them? Other municipalities across the nation regularly publish the names of men and women facing criminal charges and even publish their mug shots—partially in an effort to dissuade future lawbreakers and also enlist the public’s assistance in identifying fugitives. Proponents of the release of the Kennebunk names claim that suppression of the names would amount to a double standard for men and women charged in sex crimes. Ms. Wright, who faces criminal prosecution for prostitution and other charges, previously had her name revealed, apparently without any similar debate. Opponents argue that publication of the names would cause reputational harm that cannot be repaired even if the charges are later dropped or if the men prevail at trial. Charged with larceny and fraud in connection to a NYC construction project that benefited a construction company partially owned by him, Ronald Reagan’s Secretary of Labor, Ray Donovan, resigned from his Cabinet position. After the jury later acquitted him of all charges, he famously asked, “Which office do I go to get my reputation back?”
Setting aside serious concerns about the reputational harm that might befall an innocent unconnected citizen who happens to share the same name as one of the listed men, or the fact that some of the charged men might also be victims of invasion of privacy (Ms. Wright allegedly secretly videotaped some of the workout sessions at issue), this debate implicates a number of different legal rights and principles. The federal Freedom of Information Act (FOIA) and similar state public records laws permit citizens, including press organizations, access to booking records (but federal Circuit Courts are divided on the issue of whether mug shots must be released under the FOIA). And while the First Amendment permits media outlets to publish such information in its original form, it might not insulate them from defamation lawsuits if they incorrectly report any of the information. Many local newspapers contain a “police blotter” column reporting arrests for a variety of crimes—not just the salacious ones. An attorney for two of the Kennebunk men, on the other hand, unsuccessfully argued that the adverse publicity associated with the publication would unfairly taint the jury pool at his client’s eventual trials, violating their Sixth Amendment right to a trial “by an impartial jury” and their Fourteenth Amendment guarantee of “due process.” Though many wrongly (or at least unsuccessfully) prosecuted citizens surely suffer real harm when their arrest records are published, it is difficult to justify the suppression of some but not all the names of adult defendants charged with crimes. // Michael Racette