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Is it fair and legal for police to shame defendants on Facebook?

A Boston writer for the Associated Press recently published an article on whether police departments can legally use their Facebook pages to shame defendants they have arrested. The article cites activity from several different cities where police departments, in a quest to "inform the community," have been posting photos of criminal defendants -- in many cases, accompanied by pejorative quips.

You can read the article here, but one example from Taunton is instructive. It got heavy news coverage. According to the AP, a woman was arrested for running her car into a series of mailboxes before crashing it on a lawn. When the police arrived, they claim, she asked them to send a tow truck. When she was arrested, she had a small lizard in her brassiere. The story was posted, along with humorous asides, on the department's Facebook site.

"The impact of having a mugshot posted on social media for all to see can be incredibly damaging for folks that are parents, for folks that have jobs, for folks that have lives they have to come back to," said one civil rights advocate.

Is it legal for police to post defendants' images with quips?

Although the specific issue hasn't been tested in court, it's likely that posting defendants' images is perfectly legal. Mug shots and the like are already part of the public record.

The biggest legal problem would be if an item police posted turned out to be false. Posting false, negative information about people could open the departments up to defamation claims.

What if the item were only partially true? This could be problematic for the police in a couple of ways. First, it could still give rise to a potential defamation claim. Just as important, whatever falsehood could be proved could be used in court to prove the police were wrong, dishonest, or biased. That could hurt their cases.

Even if the item is objectively true there could still be problems. As civil rights advocates interviewed by the Associated Press point out, public shaming of people before they've been convicted could violate their right to be treated as innocent until proven guilty. If the problem became severe enough, it could theoretically backfire in court.

Ultimately, the question probably shouldn't be "is this legal?" It might be more useful to ask whether Facebook shaming is something we want our police to be doing. Should they treat defendants with dignity unless they've been convicted of a crime? Are the police alienating themselves from the community if they poke fun at people in trouble? Will it deter crime, or is it more likely to deter contacts with the police?

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Is it fair and legal for police to shame defendants on Facebook? | Anthony M. Salerno, P.C.