Most of us are used to hearing about arrests and suspects to crimes on TV and in the newspaper, and even via text message. But what about on social media? Should police be able to post information about arrests online?
Newspapers publish arrests constantly, even University newspapers will post the local arrests and DUI’s from the weekend.
So now the question to ask is: Is posting arrest information on social media different than publishing it in a newspaper?
The short answer is “no.”
The defendant in Martin v. Cleveland Heights Police Dept., 2014 WL 272221 (N.D. Ohio 2014) brought procedural due process claims against a police department that had published his mug shot, name, address, date of birth, and all alleged crimes to the iWatch website and Facebook, contending that the posted information damaged his reputation and denied him due process.
As expected, the court looked to existing Supreme Court and Sixth Circuit precedent, both of which had already addressed the same issue. (Anyone wondering about Rule 11 here? Should an attorney make an argument that has already been resolved?)
The Supreme Court in Paul v. Davis, 424 U.S. at 694-96 (1976) looked to whether constitutional rights are violated when police distributed flyers about possible shoplifters to merchants. In that case, plaintiff’s allegation was “based, not upon any challenge to the State’s ability to restrict his freedom action in a sphere contended to be ‘private,’ but instead on a claim that the State may not publicize a record of an official act such as an arrest” and no constitutional substantive due process rights were violated.
The Sixth Circuit’s reasoning in Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008) specifically held that “[d]isseminating arrest information through social media is not significantly different from posting flyers in stores or making the information available electronically on a website.” In essence, the court said that just because the public has gradually moved away from paper to the internet does not mean that the law regarding the privacy of criminal records has changed.
The court in Martin acknowledged the fact that the defendant had a stigma attached to him from the posts, but also acknowledged that there are no privacy rights when it comes to criminal charges. Also, the ultimate decision of whether or not someone is guilty does not stem from media postings, but that the decision of guilt is still made by a judge or jury, so the defendant’s due process rights had not been denied.
Social media is the world’s newspaper now and law enforcement agencies are using it to distribute their messages. But there are no greater protections for defendants inherent in it, and because it costs nothing, more information will be dispersed rather than less.
What will be the tipping point in what information can be provided?
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