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No. 14-1670
In The
UNITED STATES COURT OF APPEALS
For the Sixth Circuit
DETROIT FREE PRESS, INC,
Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of
Michigan
BRIEF OF AMICI CURIAE THE REPORTERS COMMITTEE
FOR FREEDOM OF THE PRESS AND 36 MEDIA
ORGANIZATIONS IN SUPPORT OF APPELLEE SEEKING
AFFIRMATION
Bruce D. Brown
Counsel of Record
Katie Townsend
Adam A. Marshall
The Reporters Committee for
Freedom of the Press
1156 15th St. NW, Suite 1250
Washington, D.C. 20005
Tel: (202) 795-9300
[email protected]

All amici listed on the next page.

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LIST OF AMICI CURIAE

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.

American Society of News Editors

The Associated Press
Association of Alternative Newsmedia
The Association of American Publishers, Inc.
Bloomberg L.P.
Cable News Network, Inc.
California Newspaper Publishers Association
Cox Media Group, Inc.
Dow Jones & Company, Inc.
The E.W. Scripps Company
First Amendment Coalition
First Look Media
Forbes Media LLC
Hearst Corporation
The McClatchy Company
MediaNews Group, Inc.
National Newspaper Association
The National Press Club
National Press Photographers Association
National Public Radio, Inc.
New England First Amendment Coalition
New England Newspaper and Press Association, Inc.
New England Society of Newspaper Editors
The New York Times Company
News Corp
Newspaper Association of America
North Jersey Media Group Inc.
Online News Association
Radio Television Digital News Association
The Reporters Committee for Freedom of the Press
The Seattle Times Company
Society of Professional Journalists
Stephens Media LLC
Time Inc.
Tribune Publishing Company
Tully Center for Free Speech
The Washington Post
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TABLE OF CONTENTS
LIST OF AMICI CURIAE ............................................................................. ii
TABLE OF CONTENTS .............................................................................. iii
TABLE OF AUTHORITIES ...........................................................................v
IDENTITY AND INTEREST OF AMICI CURIAE .......................................x
AUTHORSHIP STATEMENT .......................................................................x
CORPORATE DISCLOSURE STATEMENT ...............................................x
AUTHORITY TO FILE AMICUS BRIEF ......................................................x
SUMMARY OF ARGUMENT .......................................................................1
ARGUMENT ...................................................................................................3
I.

There is no personal privacy interest in a mugshot that allows the

government to withhold it under Exemption 7(C). ...............................3
A. Mugshots have been historically open to the public......................4
B. The Constitution, the laws of the vast majority of States, and the
common law make clear that there is no personal privacy interest
in mugshots. ...................................................................................5
1. There is no constitutional right of privacy in mugshots of
persons who have been arrested and charged with crimes. ........6
2. The public has a right of access or presumptive right of access
to mugshots in almost every state. ..............................................7
3. The common law does not provide for a privacy interest in
mugshots. ....................................................................................8
C. The Department of Justice frequently publishes mugshots and
other photographs of arrestees. ....................................................10
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II.

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The public interest in overseeing the administration of justice far

outweighs any purported privacy interest implicated by mugshots. .11
A. The release of mugshots helps inform the public what the
government is doing, or not doing, with respect to arrestees ......12
B. The release of mugshots informs the public as to the current and
historic activities of its law enforcement .....................................15

CONCLUSION..............................................................................................19
CERTIFICATE OF COMPLIANCE ............................................................20
Certificate of Service .....................................................................................21
Appendix A ....................................................................................................22
Appendix B ....................................................................................................22
Appendix C ....................................................................................................27
Appendix D ....................................................................................................28
Appendix E ....................................................................................................42
Appendix F ....................................................................................................44
Appendix G ....................................................................................................46
Appendix H ....................................................................................................58
Appendix I .....................................................................................................63

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TABLE OF AUTHORITIES
Cases
Dept of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749
(1989) .......................................................................................................... 5, 7, 12
Detroit Free Press v. Dept of Justice, 73 F.3D 93 (6th Cir. 1996) ................ passim
Detroit Free Press, Inc. v. Oakland Cnty. Sheriff, 418 N.W.2d 124 (Mich. Ct. App.
1987) ....................................................................................................................25
EPA v. Mink, 410 U.S. 73 (1973) ..............................................................................3
Frith v. Associated Press, 176 F. Supp. 671 (D.S.C. 1959) ..................................8, 9
Hemeyer v. KRCG-TV, 6 S.W.3d 880 (Mo. 1999) ..................................................25
Kapellas v. Kofman, 459 P.2d 912 (Cal. 1969) .......................................................15
Karantsalis v. United States Dept Of Justice, 635 F.3d 497 (11th Cir. 2011) .......16
Milner v. Dept of the Navy, 562 U.S. 562,__, 131 S.Ct. 1259, 1265 (2011) ...........3
Natl Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) .........................14
Paul v. Davis, 424 U.S. 693 (1976) .......................................................................6, 7
Planned Parenthood of Westchester, Inc. v. Town Bd. of Greenburgh, 587
N.Y.S.2d 461 (Sup. Ct. 1992) ..............................................................................26
Prall v. N.Y.C. Dept. of Corr., 971 N.Y.S.2d 821 (Sup. Ct. 2013) .........................26
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ...............................15
State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523 (Ct. App. 1996).....................27
Statutes
5 ILCS 140/2.15 .......................................................................................................24
5 U.S.C. 552 ............................................................................................................3
65 Pa. Cons. Stat. 67.701 ......................................................................................26
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Ala Code 36-12-40 ................................................................................................24

Alaska Stat. 50.25.110 ..........................................................................................24
Ariz. Rev. Stat. Ann. 39-121.................................................................................24
Ark. Code. Ann. 25-19-105 ..................................................................................24
Colo. Rev. Stat. 24-72-303(1), 27-72-302(4) & (7); ........................................24
Conn. Gen. Stat. 1-210 ..........................................................................................24
Del. Code. Ann. 10003 .........................................................................................24
Fla. Stat. 119.011(1)..............................................................................................24
Ga. Code Ann. 50-18-72(a)(4) ..............................................................................24
Haw. Rev. Stat. 92F-11(b) ....................................................................................24
Idaho Code Ann. 9-338 .........................................................................................24
Ind. Code Ann. 5-14-3-3 .......................................................................................25
Iowa Code 22.7(9).................................................................................................25
Ky. Rev. Stat. Ann. 61.872 ...................................................................................25
La. Rev. Stat. Ann. 44:3 ........................................................................................25
MD. Code Ann. State Govt 10-611 630 .........................................................25
Me. Rev. Stat. tit. 1, 408-A ...................................................................................25
Mich. Comp. Laws 15.233 ....................................................................................25
Mo. Rev. Stat. 610.011 .........................................................................................25
N.D. Cent. Code 44-04-18.7(2)(i).........................................................................26
N.H. Rev. Stat. Ann. 91-A:4 .................................................................................25
N.M. Stat. Ann. 29-10-7 .......................................................................................25
N.Y. Pub. Off. 87 ..................................................................................................26
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Neb. Rev. Stat. Ann. 29-3521(1) ...........................................................................25

Nev. Rev. Stat. 179A.100(7)(l) ................................................................................25
Ohio Rev. Code Ann. 149.43 ................................................................................26
Okla. Sat. tit. 51, 24A.8 ........................................................................................26
Or. Rev. Stat. 192.420 ...........................................................................................26
S.C. Code Ann. 30-4-30 ........................................................................................26
Tenn. Code Ann. 10-7-503 ...................................................................................26
Tex. Govt Code 552.021......................................................................................26
Utah Code Ann. 63G-2-201 ..................................................................................26
Va. Code Ann. 2.2-3706(A)(1)(b) ........................................................................26
Vt. Stat. Ann. Tit. 1, 317(c)(5)(B) ........................................................................26
W. Va. Code 29B-1-3 ...........................................................................................26
Wis. Stat. 19.35 .....................................................................................................27
Wyo. Stat. Ann. 16-4-203, 7-19-106(m)(ii)........................................................27
State Attorney General Opinions
1990 Va. Op. Atty Gen. 46 .....................................................................................26
Ala. Op. Atty Gen. No. 2004-108...........................................................................24
Cal. Op. Atty Gen 03-205 .........................................................................................8
Fla. Op. Att'y Gen. 94-90 .........................................................................................24
Haw. OIP Lt. 94-12 ..................................................................................................24
Kan. Op. Atty Gen. 87-25.........................................................................................8
La. Op. Atty Gen. 94-338 .......................................................................................25
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Md. Op. Atty Gen. 92-26 (2004) ............................................................................25

NM Op. Atty Gen. 94-02 ........................................................................................25
Okla. Op. Atty Gen. 2012-22 .................................................................................26
Tx. Op. Atty Gen. OR2001-5580 ...........................................................................26
Other Authorities
Dan Frosh, Mistaken Identity Cases at Heart of Denver Lawsuit Over
Wrongful Arrests, THE NEW YORK TIMES (Feb. 16, 2012) ..................................13
David Ray Papke, FRAMING THE CRIMINAL (1987) ...................................................5
Federal Bureau of Investigation's YouTube Channel ..............................................10
FOIA Guide for Law Enforcement, Illinois Attorney General ................................24
In re: The Evansville Courier Company/Henderson County Detention
Center, Open Records Decision 05-ORD-094 (May 17, 2005) ..........................25
Jonathan Finn, CAPTURING THE CRIMINAL IMAGE: FROM MUG SHOT TO
SURVEILLANCE SOCIETY (2009) .............................................................................5
KSL-TV v. Juab County Sheriffs Office, State Records
Committee Appeal 1998-01 .................................................................................26
Lary McDermott, Where are photos of church fire suspects?, The
(Springfield Mass.) Republican, Jan. 25, 2009 ............................................. 16, 17
Laura Ly, Lone female fugitive on US Marshals Most-Wanted list captured,
CNN (Aug. 14, 2014) ...........................................................................................16
Local Terrorist Suspect Arrested, WLWT5 (Jan. 15, 2015) ...................................15
Lou Gelfand, Noriegas mug shot was a photograph worth printing,
Star Tribune, Jan. 21, 1990 ..................................................................................10
Murder for Hire, ATF.GOV ........................................................................................19

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Nancy Laflin, Cops: Fair worker got in 2 fights while in custody,

KOAT7 (Oct. 8, 2014) .........................................................................................14
Office of the State Court Administrator, State Statutes Governing
Access to Court Records, Colorado Judicial Branch (Aug. 2008) ......................24
Raynal Pellicer, MUG SHOTS: AN ARCHIVE OF THE FAMOUS, INFAMOUS,
AND MOST WANTED (2008) ..................................................................................17
Restatement (Second) of Torts 652D......................................................................9
Royale Da, MDC: State fair worker assaulted by inmate prior to mugshot,
KOAT (Sep. 18, 2014) .........................................................................................14
Sarah Boslaugh, Mug Shots, in THE SOCIAL HISTORY OF CRIME AND
PUNISHMENT IN AMERICA: AN ENCYCLOPEDIA (Wilbur R. Miller, ed., 2012).......4
Stephanie Chen, Officer, youve got the wrong person, CNN (Feb. 15, 2010) .......13
Suspect calls 911 to report strangling in Avondale, WKRC (Jan. 15, 2015)..........16
THE ATTORNEY GENERALS GUIDE TO OPEN GOVERNMENT IN RHODE ISLAND,
(6th ed. 2012) .........................................................................................................8
The Hunt for Roger The Terrible Touhy and His Gang, FBI.GOV
(Dec. 24, 2012).....................................................................................................18
Tim Elfrink, Miami New Times writer fights for freedom of the press,
MIAMI NEW TIMES (Jan. 12, 2012).......................................................................16
Topher Sanders, Name mix-up in sexual battery case sends wrong Clay County
teen to jail for 35 days, THE FLORIDA TIMES-UNION (Feb. 24, 2014) .................13
U.S. Drug Enforcement Admin., DEA History Book (2003)..................................11
U.S. Marshals Capture Lone Female Fugitive on 15 Most Wanted List,
JUSTICE.GOV (Aug. 13, 2014) ...............................................................................16
Website of the Bureau of Alcohol, Tobacco, Firearms, and Explosives .................11
Website of the Federal Bureau of Investigations .....................................................10

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IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are The Reporters Committee for Freedom of the Press and 36
media organizations. The identity and interest of amici curiae are more fully set
forth in Appendix G.
AUTHORSHIP STATEMENT
Pursuant to Federal Rule of Appellate Procedure 29(c)(5), amici declare:
1. no partys counsel authored the brief in whole or in part;
2. no party or partys counsel contributed money intended to fund preparing or
submitting the brief; and
3. no person, other than amici, their members or their counsel, contributed
money intended to fund preparing or submitting the brief.
CORPORATE DISCLOSURE STATEMENT
The Reporters Committee for Freedom of the Press is an unincorporated
association of reporters and editors with no parent corporation and no stock. The
corporate disclosure statement for each media organization joining this brief is set
forth in full in Appendix H.
AUTHORITY TO FILE AMICUS BRIEF
Pursuant to Federal Rule of Appellate Procedure 29(a), all parties in this
case have consented to the filing of this amicus brief on behalf of PlaintiffAppellee.
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SUMMARY OF ARGUMENT
This case concerns the release of booking photographs, or mugshots, of
persons who have been arrested, were indicted on bribery and drug conspiracy
charges, and have appeared in open court. Almost 20 years ago, this Court
correctly decided that no privacy rights are implicated by the release of such
photographs that would allow the government to withhold them under Exemption
7(C) of the Freedom of Information Act (the FOIA or FOIA). See Detroit
Free Press v. Dept of Justice, 73 F.3d 93 (6th Cir. 1996) (Detroit Free Press I).
That ruling provided crucial access to booking photographs taken by the U.S.
Marshals Service for members of the news media and the public.
Amici urge this Court to uphold the decision of the district court in this case
not only on the basis of stare decisis, but because the rule articulated in Detroit
Free Press I is consistent with historical and modern understandings of privacy in
regard to persons within the criminal justice system. Since their inception,
mugshots have been open to public inspection. Neither constitutional nor common
law recognizes a privacy interest in photographs of persons who have been arrested
and indicted, and appeared in open court. Moreover, despite the governments
purported concern for the privacy of arrestees, the Department of Justice and its
various components frequently publish mugshots and other photographs of

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arrestees, undercutting the proffered rationale for withholding such information

from the public.
Even if the public availability of booking photographs somehow implicated
privacy interests, their significant contribution to public understanding of
government activity would still require disclose pursuant to the FOIA. For
example, the release of mugshots can help the public ensure that law enforcement
personnel have captured the correct suspect. They can also alert the public to
either abusive law enforcement officers, or clear them of suspicion of impropriety.
Additionally, the public benefits from being informed of the workings of the
criminal justice process as a whole. This is particularly relevant to journalists and
members of the news media, who play an essential role in ensuring that the public
remains up-to-date, and rely on mugshots to help them do so. A photograph
enhances journalists ability to tell the public about what the government is doing
when it comes to law enforcement. It is a representation of both the identity of the
arrestee and a memorialization of the actions of the state undertaken with regard to
that person, namely, their arrest. This increase in public knowledge regarding the
workings of their government far outweighs any purported privacy interest that
may exist in mugshots of persons whose identities are already public knowledge.
Therefore, such photographs must be released pursuant to the FOIA.

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ARGUMENT
I.

There is no personal privacy interest in a mugshot that allows the

government to withhold it under Exemption 7(C).
The Freedom of Information Act is broadly conceived. It seeks to permit

access to official information long shielded unnecessarily from public view and
attempts to create a judicially enforceable public right to secure such information
from possibly unwilling official hands. EPA v. Mink, 410 U.S. 73, 80 (1973).
FOIA contains several exemptions that permit the government, in its discretion, to
withhold certain types of records. See 5 U.S.C. 552(b)(1)-(9). However, the
Supreme Court has often noted the Act's goal of broad disclosure and insisted
that the exemptions be given a narrow compass. Milner v. Dept of the Navy,
562 U.S. 562 (2011) (citations omitted). Exemption 7(C) allows the government to
withhold records or information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement records or
information . . . could reasonably be expected to constitute an unwarranted
invasion of personal privacy. 5 U.S.C. 552(b)(7)(C) (emphasis added). In order
to be withheld, the record (1) must be compiled for law enforcement purposes, (2)
must be reasonably expected to constitute an invasion of personal privacy, and (3)
must create an intrusion that is unwarranted, considering the balance of privacy
and public interest. See Detroit Free Press I, 73 F.3d at 96. For purposes of this
appeal, amici do not contest that the records in question in this case were compiled
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for law enforcement purposes, and therefore focus on the two remaining prongs of
the test.
In Detroit Free Press I, this Court correctly determined that no privacy
rights are implicated by releasing a mugshot of a person who is subject to an
ongoing criminal proceeding, whose name has already been divulged, and who has
appeared in open court. 73 F.3d at 910. That holding not only controls the
outcome of this case, but is firmly supported by the history of booking photographs
in the United States, the Constitution, the practices of the states, and the common
law. None of these sources of law recognize a privacy interest in mugshots that
would allow the government to withhold them, and they must therefore be released
pursuant to the FOIA.
A.

Mugshots have been historically open to the public.

The practice of taking photographs of arrestees became widespread in law

enforcement agencies in the United States by the end of the nineteenth century, not
long after the development of modern photography. See Sarah Boslaugh, Mug
Shots, in THE SOCIAL HISTORY OF CRIME AND PUNISHMENT IN AMERICA: AN
ENCYCLOPEDIA 1143, 1143 (Wilbur R. Miller, ed., 2012). Thomas Byrnes, who
joined the New York City Police Department in 1863, pioneered the practice of
compiling books of criminals photographs in order to aid in identifications. Id.
These compilations soon became so voluminous that they became difficult for the
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police to utilize. Byrnes addressed this problem by producing his album for
public distribution. Rather than limiting the album to the police, Byrnes enlisted
the public in the practice of policing. Jonathan Finn, CAPTURING THE CRIMINAL
IMAGE: FROM MUG SHOT TO SURVEILLANCE SOCIETY 10 (2009). Thus, the public
was invited to view them in a cooperative effort with law enforcement. See, e.g.,
David Ray Papke, FRAMING THE CRIMINAL 138 (1987) (illustration of individuals
examining displays of mug shots from OUR POLICE PROTECTORS (1885)
(reproduced in Appendix A). While other means of identification have developed
since then, mugshots remain in use by law enforcement for identification
throughout the United States at both the federal and state level. Their history
shows that from the very beginning, mugshots have been open to the public for
their inspection as part of the activities of law enforcement.
B.

The Constitution, the laws of the vast majority of States, and the
common law make clear that there is no personal privacy interest
in mugshots.

Exemption 7(C) does not expressly define personal privacy. Accordingly,

courts have looked to other areas of the law to determine what it encompasses. In
1989, the Supreme Court made clear that the Constitution, the practices of the
states, and the common law are all instructive in this regard. See Dept of Justice
v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762-67 & n. 1315.
(1989) (Reporters Committee). In a case where the records in question are
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photographs of individuals who have been arrested, have been charged, and have
appeared in open court, none of these sources of law create a personal privacy
interest that would allow the government to withhold the photographs.
1.

There is no constitutional right of privacy in mugshots of

persons who have been arrested and charged with crimes.

The Supreme Court has made clear that no constitutional privacy interest is
violated when the government distributes mugshots of persons who have been
charged with a crime. See Paul v. Davis, 424 U.S. 693, 712 (1976). In Davis, the
mugshot of Edward Davis, who had been previously arrested for shoplifting, was
distributed to the public by the Louisville police along with photographs of other
active shoplifters. Id. at 69596. Like the photographs at issue in this case, at
the time the poster was distributed to the public Davis had been charged with
shoplifting but his guilt or innocence of that offense had never been resolved. Id.
at 696. The Supreme Court held that Daviss constitutional right to privacy was
not violated by the distribution. Id. at 713.
The Court in Davis drew an important contrast between the private and
public spheres, holding that the latter is not protected. Of course, matters relating
to marriage, procreation, contraception, family relationships, and child rearing and
education may be protected by the Constitution. Id. But Daviss case was based
on a claim that the State may not publicize a record of an official act such as an
arrest . . ., id., which the Court firmly rejected. None of our substantive privacy
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decisions hold this or anything like this, and we decline to enlarge them in this
manner. Id.
The Courts common-sense division between matters relating to decisions
made within the context of an individuals personal life and those that relate to
official acts in Davis belies the notion that there is any constitutional privacy right
implicated by distributing mugshots. Far from invading an individuals autonomy
with regards to intimate familial decisions, the photographs in this case concern
persons who have already been arrested, been indicted, and appeared in open court,
where any member of the public has the right to attend and see them. There is no
constitutional privacy interest triggered by the dissemination of such photographs
that the Government can argue allows them to be withheld under the FOIA.
2.

The public has a right of access or presumptive right of

access to mugshots in almost every state.

In determining the privacy interests encompassed by Exemption 7(C), the

practices of states are an especially important indicator. See Reporters Committee,
489 U.S. at 767. A thorough survey of state laws undertaken by amici
demonstrates that, in the vast majority of states, there is no privacy interest in
mugshots that would allow them to be withheld from the public. To the contrary,
booking photographs are available or presumptively available to the public under
the open records laws of at least 40 states. See Appendix B.

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Even in states where mugshots are not presumptively available under open
government laws, it is usually for law enforcement, and not privacy reasons.1 See,
e.g., Cal. Op. Atty Gen 03-205, available at http://bit.ly/1KAuu2Y
([i]mportantly, furnishing a mug shot to a member of the general public, including
the news media, would not violate the arrested persons constitutional right of
privacy.); Kan. Op. Atty Gen. 87-25, available at http://bit.ly/1y3QiAq; THE
ATTORNEY GENERALS GUIDE TO OPEN GOVERNMENT IN RHODE ISLAND, (6th ed.
2012), available at http://1.usa.gov/14qyFhk. In short, hardly any states recognize
a privacy interest in mugshots that would prohibit their disclosure to the public.
3.

The common law does not provide for a privacy interest in

mugshots.

It is well settled under the common law that the disclosure of truthful
information regarding an accused person within the criminal justice system is not
actionable as a privacy tort. In Frith v. Associated Press, a federal district court
rejected an arrestees claim that their right of privacy was violated when the
Associated Press distributed mugshots it had received from South Carolina law
enforcement officials. 176 F. Supp. 671 (D.S.C. 1959). The court recognized the
distinction that would later be discussed by the Supreme Court in Davis, holding
that [b]y the issuance of a warrant and the arrest of the plaintiffs, they became

Notably the government has not argued in this case that disclosure of booking
photographs would impede its law enforcement activities.
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figures of public interest. As such the publication of their pictures was not an
unwarranted invasion of their privacy. Id. at 676.
The Restatement of Torts also states the principle that persons within the
criminal justice system have no cognizable privacy interest with regards to their
prosecution by the government. Those who commit crime or are accused of it
may not only not seek publicity but may make every possible effort to avoid it, but
they are nevertheless persons of public interest, concerning whom the public is
entitled to be informed. Restatement (Second) of Torts 652D, Comment f. For
example,
A is tried for murder and acquitted. During and immediately after
the trial B Newspaper publishes daily reports of it, together with
pictures and descriptions of A and accounts of his past history and
daily life prior to the trial. This not an invasion of A's privacy.
Id. 652D, illustration 13 (emphasis added).
The rule articulated in Detroit Free Press I, which controls the release of
records in this case, is squarely in line with the common law rights of privacy.
It applies only to mugshots of persons who are already indicted, who had already
made court appearances after their arrests, and whose names had already been
made public in connection with an ongoing criminal prosecution . . . . 73 F.3d at
98. There is nothing private about these facts. These are people who have been
charged with a crime and whose identities are known to the public, which has a
right to be informed of the facts of their arrest.
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C.

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The Department of Justice frequently publishes mugshots and

other photographs of arrestees.

Although the Department of Justice contends that the government should not
be required to release mugshots under the FOIA because of the arrestees
purported privacy interests, see Appellants Opening Br. at 1631, the actions of
various components of the DOJ paint a very different picture. Indeed, booking
photographs are frequently published by the government for a wide variety of
reasons unrelated to the need to capture a fugitive from justice. For example, some
DOJ employees simply release mugshots on their own initiative. See Lou Gelfand,
Noriegas mug shot was a photograph worth printing, Star Tribune, Jan. 21, 1990,
at A23, available at 1990 WLNR 3517578 (Diane Cossin of the U.S. attorneys
office in Miami . . . said prisoner photos are not part of the public record in the
federal district of southern Florida, but she said her office routinely makes them
available.). Among other examples:
The Federal Bureau of Investigations website contains numerous mugshots,
including, among others those of Ted Kaczynski
(http://1.usa.gov/1BXu54k), Patty Hearst (http://1.usa.gov/1tBf2c1), and Al
Capone (http://1.usa.gov/1C5ULAk). It also has press releases with
photographs of arrestees (http://1.usa.gov/149NjZv). The FBIs YouTube
channel also has a video with a lengthy discussion of Kaczynskis mugshot
that was uploaded on May 1, 2013 (http://bit.ly/1u7iDEO).
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The website of the Bureau of Alcohol, Tobacco, Firearms, and Explosives

prominently displays mugshots in its online exhibits. See, e.g., Criminal
Investigations: Explosives and Bombings, atf.gov, http://1.usa.gov/1vobHfP
(last accessed Dec. 2, 2014) (showing mugshots of Eric Rudolph, Marcus
Toney, Lisa Toney, and four additional defendants).
The Drug Enforcement Administrations 30th Anniversary history book,
published in 2003, contains mugshots of drug kingpin Carlos Lehder and
former Panamanian President Manuel Noriega. U.S. Drug Enforcement
Admin., DEA History Book 67-71 (2003), available at http://bit.ly/152uSaj.
If the Department of Justice truly believes mugshots implicate legitimate
privacy interests that authorize their withholding under the FOIA, it is not clear
why its components have routinely chosen to publish them. Unless the DOJs
position is that it routinely violates the privacy rights of persons who have been in
the custody of the United States government, its practices serve as an admission
that no privacy interests are implicated by the release of such photographs.

II.

The public interest in overseeing the administration of justice far

outweighs any purported privacy interest implicated by mugshots.
Even assuming, arguendo, that there is some personal privacy interest in

mugshots, it is strongly outweighed by the public interest served by their

disclosure. See Detroit Free Press I, 73 F.3d at 9798. Under Exemption 7(C),
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any personal privacy interest in a record must be weighed against the core
purpose of the FOIA: contribut[ing] significantly to public understanding of the
operations or activities of the government. Reporters Committee, 489 U.S. at 775.
In addition to the benefits of releasing mugshots to the public that this Court has
previously identified, see Detroit Free Press I, 73 F.3d at 93, amici also wish to
highlight the interest of the public in being informed of the workings of the
criminal justice process as a whole. This interest is particularly relevant to
journalists and members of the news media, who play an essential role in ensuring
that the public is made aware of the activities of the government. The importance
of such information far outweighs any privacy interest that may exist in booking
photographs, and therefore they must be disclosed.
A.

The release of mugshots helps inform the public what the

government is doing, or not doing, with respect to arrestees

In Detroit Free Press I, the court stated that the release of mugshots under
FOIA could help the public determine whether the government was detaining the
wrong person, and could shed light on the circumstances of an arrest. See Detroit
Free Press I, 73 F.3d at 93. These are both situations in which a booking
photograph would help the public understand what their government is doing.
Releasing booking photographs of suspects can help the public ensure that
law enforcement authorities have captured the correct person. Cases of mistaken
arrest are, unfortunately, relatively frequent in the United States. See Stephanie
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Chen, Officer, youve got the wrong person, CNN (Feb. 15, 2010),
http://cnn.it/158upD1 (collecting stories of mistaken identity arrests from around
the country); Dan Frosh, Mistaken Identity Cases at Heart of Denver Lawsuit Over
Wrongful Arrests, THE NEW YORK TIMES (Feb. 16, 2012), http://nyti.ms/1B73B3Q
(describing a lawsuit by the ACLU against Denver over more than 600 cases of
mistaken arrests over a ten year period). In one case, an innocent high school
student with the same name as a suspect was arrested and jailed for over a month.
Topher Sanders, Name mix-up in sexual battery case sends wrong Clay County
teen to jail for 35 days, THE FLORIDA TIMES-UNION (Feb. 24, 2014),
http://bit.ly/1E4LWYT. The investigating officer thought that the arrestee was the
suspect, but failed to show [the victim] his photo to confirm he had the right
person . . . Id. After the students mother raised doubts with the police, they
conducted a photo-line up with the victim that confirmed he was not the suspect
and led to his release. Id. If law enforcement routinely released booking
photographs to the public, it would help ensure that such cases of mistaken identity
by the government are corrected by the public.
Allowing access to mugshots can also alert the public to either abusive law
enforcement officers, or clear them of suspicion of impropriety. For example, if an
inmate appears in court after being arrested with bruises and cuts on his face and
alleges that the guard beat him up, that could constitute evidence that would
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warrant a belief by a reasonable person that the alleged Government impropriety

might have occurred. Natl Archives & Records Admin. v. Favish, 541 U.S. 157,
174 (2004). The release of the inmates booking photograph could show either
that he was arrested with the injuries and therefore they were not the result of the
guards, or that the injuries were not present when he was arrested, and therefore
something happened while he was being held in the custody of the government.
Either way, the public learns something about the actions of its government.
It is even possible that a booking photograph can show that the government
is not providing enough security for persons in its custody. For example, in New
Mexico, the release of a mugshot that showed an arrestee with a bloody face
prompted the media to inquire into the circumstances of his arrest. See Royale Da,
MDC: State fair worker assaulted by inmate prior to mugshot, KOAT (Sep. 18,
2014), http://bit.ly/1DIDml3. The police ultimately stated that the arrestee was
assaulted by an inmate within the police station, and that when they book inmates
into the facility they do not separate them from one another. See Nancy Laflin,
Cops: Fair worker got in 2 fights while in custody, KOAT7 (Oct. 8, 2014),
http://bit.ly/1x6MFUL. Thus, the public, if it wished, could raise questions about
whether the police were taking proper measures with regards to security at police
stations, which is certainly a form of government activity.

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The release of mugshots informs the public as to the current and

historic activities of its law enforcement

A publicly accountable criminal justice system is a fundamental tenet of our

nations system of governance, and the presss ability to report on the criminal
justice system is essential to ensuring that accountability. See Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (noting that press access
and publication of trials contributes to public understanding of the rule of law and
to comprehension of the functioning of the entire criminal justice system . . . .");
Kapellas v. Kofman, 459 P.2d 912, 924 (Cal. 1969) (noting that [n]ewspapers
have traditionally reported arrests or other incidents involving suspected criminal
activity, and courts have universally concluded that such events are newsworthy
matters of which the public has the right to be informed.). Because the public is
not able to be present at all stages of the criminal justice process, it is imperative
that the press have access to information that allows them to inform the public
about what has transpired.
Reporters rely on booking photographs to help inform the public about what
the government is doing. It is a representation of both the identity of the arrestee
and a memorialization of the actions of the state undertaken with regards to that
person, namely, their arrest. Local and national TV stations routinely air mugshots
of arrestees on the news to inform the public about the actions of the government.
See, e.g., Local Terrorist Suspect Arrested, WLWT5 (Jan. 15, 2015),
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http://bit.ly/1IDLIdP; Suspect calls 911 to report strangling in Avondale, WKRC

(Jan. 15, 2015), http://bit.ly/152qAjl. A photograph is an important component
that enables reporters to do their job. When reporter Theo Karantsalis (the plaintiff
in Karantsalis v. United States Dept Of Justice, 635 F.3d 497 (11th Cir. 2011))
was asked why he was seeking mugshots from the U.S. Marshals Service, he
responded, simply: I need this information to be able to tell stories. Tim Elfrink,
Miami New Times writer fights for freedom of the press, MIAMI NEW TIMES (Jan.
12, 2012), http://bit.ly/1F4PjDq.
When the public reads about an arrest, they expect to see a photo of those
charged . . . . Lary McDermott, Where are photos of church fire suspects?, The
(Springfield Mass.) Republican, Jan. 25, 2009, at C7, available at 2009 WLNR
1572643. The government is all too aware of this, as seen in press releases issued
by the U.S. Marshals service. See, e.g., U.S. Marshals Capture Lone Female
Fugitive on 15 Most Wanted List, JUSTICE.GOV (Aug. 13, 2014),
http://1.usa.gov/1xupRSG (press release regarding the capture of Janet Killough
Barreto that includes her picture) (reproduced in part in Appendix C); See also
Laura Ly, Lone female fugitive on US Marshals Most-Wanted list captured, CNN
(Aug. 14, 2014), http://www.cnn.com/2014/08/14/justice/lone-female-fugitive/
(showing same photograph). For the news media and government alike, pictures
help tell the public what has transpired and who it has affected.
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The inclusion of an arrestees photograph is so tied up with reporting on the

governments activities that its absence can lead to public confusion. Just hours
after Barack Obama was sworn in as president in 2009, three white men were
arrested and charged with setting fire to a church that hosted a predominantly
African-American congregation. See McDermott, Where are photos of church fire
suspects?. Because the case was being investigated by federal authorities, the
booking photographs of the suspects were not released. The readers of the
newspaper questioned why this should be the case, especially given that other
stories reporting on local crimes, specifically those where black persons were the
suspects, included mugshots. Id. The paper ended up publishing an editorial
explaining that the absence of the photos of the white arrestees was not due to
racism, but to the simple fact that the federal government had decided to withhold
them. Id.
In addition to breaking news stories, there is also an important historical
interest in booking photographs. Many mugshots have come to represent crucial
moments in American history. See Raynal Pellicer, MUG SHOTS: AN ARCHIVE OF
THE FAMOUS, INFAMOUS, AND MOST WANTED

(2008) (containing booking

photographs of, among others, Emma Goldman, Charles Ponzi, Al Capone, John
Dillinger, Bruno Hauptmann, Hermann Goering, Julius and Ethel Rosenberg, Rosa
Parks, Martin Luther King, Jr., Malcolm X, Janis Joplin, Jane Fonda, Lee Harvey
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Oswald, Sirhan Sirhan, members of The Weathermen, John Gotti, O.J. Simpson,
Perry Smith, and Richard Hickock) (reproduced in Appendix D). These pictures
are not important because of a voyeuristic interest regarding the person they
portray, but because they tell a larger story about what the government is doing
with regards to that person and the situation that precipitated their arrest. The
booking photograph of civil rights icon Rosa Parks (reproduced in Appendix D)
serves as a window into the discriminatory actions of the government at the time it
was taken. It sends a powerful message about the nature of the laws that
precipitated Ms. Parks civil disobedience, in addition to serving as a record of the
fact that she was arrested by the government for refusing to obey those laws.
The government has recognized the important historical aspect of mugshots
in its own online exhibits, where they are prominently displayed as examples of
triumphs of law enforcement throughout the past century. See, e.g., The Hunt for
Roger The Terrible Touhy and His Gang, FBI.GOV (Dec. 24, 2012),
http://1.usa.gov/1wOp89s (reproduced in part in Appendix E). In the FBIs article
on the capture of Roger Touhy and his gang after many months on the run, their
booking photographs are prominently featured with the caption Roger Touhy,
Edward Darlak, and Basil Banghart were captured on December 29, 1942. Id.
The photographs tell the public not about the criminals, but rather about the actions

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of the governmenthow the FBI agents tracked the gang down and finally brought
them to justice.
Mug shots also appear prominently in more recent stories of the
governments successful apprehension of criminals, such as the arrest of Dr. Carl
Drury, who asked a federal agent to locate a hitman to kill his wife in 2001. See
Murder for Hire, ATF.GOV, http://1.usa.gov/1xtKLAX (last accessed Jan. 5, 2015)
(reproduced in Appendix F). The reason for the inclusion of these photographs is
clear: they tell the viewing public about the activities of the government, and the
photograph is the memorialization of the culminating arrest. As they give valuable
information about the accomplishments of government activities, booking
photographs, whether historical or contemporary, must be released to the public.
CONCLUSION
For the reasons stated above, this Court should uphold the decision of the
District Court.
Respectfully submitted,
/s/ Bruce D. Brown
BRUCE D. BROWN
Counsel of Record
Katie Townsend
Adam Marshall
The Reporters Committee for
Freedom of the Press
1156 15th S. NW, Suite 1250
Washington, D.C. 20005
Phone: 202-795-9301
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CERTIFICATE OF COMPLIANCE
I, Bruce D. Brown, do hereby certify: (1) Brief of Amici Curiae complies
with the type-volume limitation Fed. R. App. P. 32(a)(7)(B) because it contains
4,497 words, according to the word count of Microsoft Office Word 2010; (2)
Brief of Amici Curiae complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Office Word
2010 in 14-point Times New Roman; and (3) Brief of Amici Curiae has been
scanned for viruses and is virus free.

/s/ Bruce D. Brown

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CERTIFICATE OF SERVICE
I, Bruce D. Brown, do hereby certify that I have filed the foregoing Brief of
Amici Curiae electronically with the Courts CM/ECF system with a resulting
electronic notice to all counsel of record on January 16, 2015.
/s/ Bruce D. Brown

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APPENDIX A 2

From David Ray Papke, FRAMING THE CRIMINAL 138 (1987)

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APPENDIX B
State Laws, Cases, and Legal Guidance Regarding
Public Access to Booking Photographs
Alabama: Ala Code 36-12-40, Ala. Op. Atty Gen. No. 2004-108 3
Alaska: Alaska Stat. 50.25.110
Arizona: Ariz. Rev. Stat. Ann. 39-121
Arkansas: Ark. Code. Ann. 25-19-105
Colorado: Colo. Rev. Stat. 24-72-303(1), 27-72-302(4) & (7); Office of the
State Court Administrator, State Statutes Governing Access to Court Records,
Colorado Judicial Branch (Aug. 2008)4
Connecticut: Conn. Gen. Stat. 1-210
Delaware: Del. Code. Ann. 10003
Florida: Fla. Stat. 119.011(1); Fla. Op. Att'y Gen. 94-90 5
Georgia: Ga. Code Ann. 50-18-72(a)(4)
Hawaii: Haw. Rev. Stat. 92F-11(b); Haw. OIP Lt. 94-126
Idaho: Idaho Code Ann. 9-338;
Illinois: 5 ILCS 140/2.15; FOIA Guide for Law Enforcement, Illinois Attorney
General,

Available at http://www.ago.state.al.us/opinions/pdf/2004-108.pdf.
Available at http://www.courts.state.co.us/userfiles/File/Media/accessguide_0808_FINAL.doc.
5
Available at
http://www.myfloridalegal.com/ago.nsf/Opinions/83A1D5004064269D852562210
063168E.
6
Available at http://files.hawaii.gov/oip/opinionletters/opinion%2094-12.PDF.
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https://foia.ilattorneygeneral.net/pdf/FOIA_Guide_for_Law_Enforcement3-1311.pdf (last accessed Dec. 1, 2014)

Indiana: Ind. Code Ann. 5-14-3-3
Iowa: Iowa Code 22.7(9)
Kentucky: Ky. Rev. Stat. Ann. 61.872; In re: The Evansville Courier
Company/Henderson County Detention Center, Open Records Decision 05-ORD094 (May 17, 2005) 7
Louisiana: La. Rev. Stat. Ann. 44:3 (except for photos of convicted sex
offenders, see La. Op. Atty Gen. 94-3388)
Maine: Me. Rev. Stat. tit. 1, 408-A
Maryland: MD. Code Ann. State Govt 10-611 630; Md. Op. Atty Gen. 9226 (2004)9
Michigan: Mich. Comp. Laws 15.233; Detroit Free Press, Inc. v. Oakland Cnty.
Sheriff, 418 N.W.2d 124 (Mich. Ct. App. 1987);
Minnesota: Minn. Stat. 13.82(26)
Missouri: Mo. Rev. Stat. 610.011; Hemeyer v. KRCG-TV, 6 S.W.3d 880 (Mo.
1999)
Nebraska: Neb. Rev. Stat. Ann. 29-3521(1)
Nevada: Nev. Rev. Stat. 179A.100(7)(l) (requiring records of criminal history to be
disseminated to reporters);
New Hampshire, N.H. Rev. Stat. Ann. 91-A:4;
New Mexico, N.M. Stat. Ann. 29-10-7, NM Op. Atty Gen. 94-02 10;
7

Available at http://ag.ky.gov/civil/orom/2005/05ord094.doc.
Available at
http://www.ag.state.la.us/Shared/ViewDoc.aspx?Type=4&Doc=14271.
9
Available at http://www.oag.state.md.us/Opinions/2007/92oag26.pdf.
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New York, N.Y. Pub. Off. 87 Planned Parenthood of Westchester, Inc. v. Town
Bd. of Greenburgh, 587 N.Y.S.2d 461 (Sup. Ct. 1992), but see Prall v. N.Y.C.
Dept. of Corr., 971 N.Y.S.2d 821 (Sup. Ct. 2013) (holding that booking
photographs can be withheld in some cases);
North Dakota, N.D. Cent. Code 44-04-18.7(2)(i);
Ohio, Ohio Rev. Code Ann. 149.43;
Oklahoma, Okla. Sat. tit. 51, 24A.8, Okla. Op. Atty Gen. 2012-22 11;
Oregon, Or. Rev. Stat. 192.420;
Pennsylvania, 65 Pa. Cons. Stat. 67.701;
South Carolina, S.C. Code Ann. 30-4-30;
Tennessee, Tenn. Code Ann. 10-7-503;
Texas, Tex. Govt Code 552.021, Tx. Op. Atty Gen. OR2001-5580 12;
Utah, Utah Code Ann. 63G-2-201, KSL-TV v. Juab County Sheriffs Office, State
Records Committee Appeal 1998-01 13;
Vermont, Vt. Stat. Ann. Tit. 1, 317(c)(5)(B);
Virginia, Va. Code Ann. 2.2-3706(A)(1)(b), 1990 Va. Op. Atty Gen. 46;
West Virginia, W. Va. Code 29B-1-3;

10

Available at http://public-records.nmag.gov/opinions/9402.pdf?attredirects=0&d=1.
11
Available at
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=468511.
12
Available at
https://www.texasattorneygeneral.gov/opinions/openrecords/49cornyn/orl/2001/ht
m/or200105580.htm.
13
Available at http://archives.utah.gov/src/srcappeal-1998-01.html.
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Wisconsin, Wis. Stat. 19.35, State ex rel. Borzych v. Paluszcyk, 201 Wis. 2d 523
(Ct. App. 1996);
Wyoming, Wyo. Stat. Ann. 16-4-203, 7-19-106(m)(ii).

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APPENDIX C 14

14

U.S. Marshals Capture Lone Female Fugitive on 15 Most Wanted List,

jusice.gov (Aug. 13, 2014), http://1.usa.gov/1xupRSG.
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APPENDIX D 15

Emma Goldman

Charles Ponzi

15

All images are taken from Raynal Pellicer, MUG SHOTS: AN ARCHIVE OF THE
FAMOUS, INFAMOUS, AND MOST WANTED (2008).
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Al Capone

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John Dillinger

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Bruno Hauptmann

31

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Hermann Goering

Julius and Ethel Rosenberg

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Rosa Parks

33

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Martin Luther King, Jr.

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Malcolm X

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Janis Joplin

Jane Fonda
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Lee Harvey Oswald

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Sirhan Sirhan

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Members of The Weathermen

John Gotti

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O.J. Simpson

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Perry Smith
Richard Hickock

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APPENDIX E 16

16

The Hunt for Roger The Terrible Touhy and His Gang, fbi.gov (Dec. 24,
2012), http://1.usa.gov/1wOp89s
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APPENDIX F 17

17

Murder for Hire, atf.gov, http://1.usa.gov/1xtKLAX (last accessed Jan. 5, 2015)

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APPENDIX G
IDENTITY AND INTEREST OF AMICI CURIAE
The Reporters Committee for Freedom of the Press is a voluntary,
unincorporated association of reporters and editors that works to defend the First
Amendment rights and freedom of information interests of the news media. The
Reporters Committee has provided representation, guidance and research in First
Amendment and Freedom of Information Act litigation since 1970.
With some 500 members, American Society of News Editors (ASNE) is
an organization that includes directing editors of daily newspapers throughout the
Americas. ASNE changed its name in April 2009 to American Society of News
Editors and approved broadening its membership to editors of online news
providers and academic leaders. Founded in 1922 as American Society of
Newspaper Editors, ASNE is active in a number of areas of interest to top editors
with priorities on improving freedom of information, diversity, readership and the
credibility of newspapers.
The Associated Press ("AP") is a news cooperative organized under the Notfor-Profit Corporation Law of New York, and owned by its 1,500 U.S. newspaper
members. The APs members and subscribers include the nations newspapers,
magazines, broadcasters, cable news services and Internet content providers. The

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AP operates from 300 locations in more than 100 countries. On any given day,
APs content can reach more than half of the worlds population.
Association of Alternative Newsmedia (AAN) is a not-for-profit trade
association for 130 alternative newspapers in North America, including weekly
papers like The Village Voice and Washington City Paper. AAN newspapers and
their websites provide an editorial alternative to the mainstream press. AAN
members have a total weekly circulation of seven million and a reach of over 25
million readers.
The Association of American Publishers, Inc. (AAP) is the national trade
association of the U.S. book publishing industry. AAPs members include most of
the major commercial book publishers in the United States, as well as smaller and
nonprofit publishers, university presses and scholarly societies. AAP members
publish hardcover and paperback books in every field, educational materials for the
elementary, secondary, postsecondary and professional markets, scholarly journals,
computer software and electronic products and services. The Association
represents an industry whose very existence depends upon the free exercise of
rights guaranteed by the First Amendment.
Bloomberg L.P. operates Bloomberg News, a 24-hour global news service
based in New York with more than 2,400 journalists in more than 150 bureaus
around the world. Bloomberg supplies real-time business, financial, and legal news
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to the more than 319,000 subscribers to the Bloomberg Professional service worldwide and is syndicated to more than 1000 media outlets across more than 60
countries. Bloomberg television is available in more than 340 million homes
worldwide and Bloomberg radio is syndicated to 200 radio affiliates nationally. In
addition, Bloomberg publishes Bloomberg Businessweek, Bloomberg Markets and
Bloomberg Pursuits magazines with a combined circulation of 1.4 million readers
and Bloomberg.com and Businessweek.com receive more than 24 million visitors
each month. In total, Bloomberg distributes news, information, and commentary to
millions of readers and listeners each day, and has published more than one
hundred million stories.
Cable News Network, Inc. (CNN), a division of Turner Broadcasting
System, Inc., a Time Warner Company, is the most trusted source for news and
information. Its reach extends to the following: nine cable and satellite television
networks; one private place-based network; two radio networks; wireless devices
around the world; CNN Digital Network, the No. 1 network of news websites in
the United States; CNN Newsource, the worlds most extensively syndicated news
service; and strategic international partnerships within both television and the
digital media.
The California Newspaper Publishers Association ("CNPA") is a nonprofit
trade association representing the interests of nearly 850 daily, weekly and student
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newspapers throughout California. For over 130 years, CNPA has worked to
protect and enhance the freedom of speech guaranteed to all citizens and to the
press by the First Amendment of the United States Constitution and Article 1,
Section 2 of the California Constitution. CNPA has dedicated its efforts to protect
the free flow of information concerning government institutions in order for
newspapers to fulfill their constitutional role in our democratic society and to
advance the interest of all Californians in the transparency of government
operations.
Cox Media Group, Inc. is an integrated broadcasting, publishing, direct
marketing and digital media company. Its operations include 15 broadcast
television stations, a local cable channel, a leading direct marketing company, 85
radio stations, eight daily newspapers and more than a dozen non-daily print
publications and more than 100 digital services.
Dow Jones & Company, Inc., a global provider of news and business
information, is the publisher of The Wall Street Journal, Barrons, MarketWatch,
Dow Jones Newswires, and other publications. Dow Jones maintains one of the
worlds largest newsgathering operations, with more than 1,800 journalists in
nearly fifty countries publishing news in several different languages. Dow Jones
also provides information services, including Dow Jones Factiva, Dow Jones Risk

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& Compliance, and Dow Jones VentureSource. Dow Jones is a News Corporation
company.
The E.W. Scripps Company is a diverse, 131-year-old media enterprise with
interests in television stations, newspapers, local news and information websites
and licensing and syndication. The companys portfolio of locally focused media
properties includes: 19 TV stations (ten ABC affiliates, three NBC affiliates, one
independent and five Spanish-language stations); daily and community newspapers
in 13 markets; and the Washington-based Scripps Media Center, home of the
Scripps Howard News Service.
First Amendment Coalition is a nonprofit public interest organization
dedicated to defending free speech, free press and open government rights in order
to make government, at all levels, more accountable to the people. The Coalitions
mission assumes that government transparency and an informed electorate are
essential to a self-governing democracy. To that end, we resist excessive
government secrecy (while recognizing the need to protect legitimate state secrets)
and censorship of all kinds.
First Look Media, Inc. is a new non-profit digital media venture that
produces The Intercept, a digital magazine focused on national security reporting.
Forbes LLC is the publisher of Forbes and other leading magazines, including
Forbes Life and Forbes Asia, as well as an array of investment newsletters and the
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leading business website, Forbes.com. Forbes has been covering American and
global business since 1917.
Hearst Corporation is one of the nations largest diversified media
companies. Its major interests include the following: ownership of 15 daily and 38
weekly newspapers, including the Houston Chronicle,San Francisco
Chronicle and Albany (N.Y.) Times Union; nearly 300 magazines around the
world, including Good Housekeeping, Cosmopolitan and O, The Oprah Magazine;
29 television stations, which reach a combined 18% of U.S. viewers; ownership in
leading cable networks, including Lifetime, A&E and ESPN; business publishing,
including a joint venture interest in Fitch Ratings; and Internet businesses,
television production, newspaper features distribution and real estate.
The McClatchy Company, through its affiliates, is the third-largest
newspaper publisher in the United States with 29 daily newspapers and related
websites as well as numerous community newspapers and niche publications.
MediaNews Group's more than 800 multi-platform products reach 61 million
Americans each month across 18 states.
National Newspaper Association is a 2,400 member organization of
community newspapers founded in 1885. Its members include weekly and small
daily newspapers across the United States. It is based in Columbia, Missouri.

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The National Press Club is the worlds leading professional organization for
journalists. Founded in 1908, the Club has 3,100 members representing most major
news organizations. The Club defends a free press worldwide. Each year, the Club
holds over 2,000 events, including news conferences, luncheons and panels, and
more than 250,000 guests come through its doors.
The National Press Photographers Association (NPPA) is a 501(c)(6) nonprofit organization dedicated to the advancement of visual journalism in its
creation, editing and distribution. NPPAs approximately 7,000 members include
television and still photographers, editors, students and representatives of
businesses that serve the visual journalism industry. Since its founding in 1946, the
NPPA has vigorously promoted the constitutional rights of journalists as well as
freedom of the press in all its forms, especially as it relates to visual journalism.
The submission of this brief was duly authorized by Mickey H. Osterreicher, its
General Counsel.
National Public Radio, Inc. is an award-winning producer and distributor of
noncommercial news programming. A privately supported, not-for-profit
membership organization, NPR serves a growing audience of more than 26 million
listeners each week by providing news programming to 285 member stations that
are independently operated, noncommercial public radio stations. In addition, NPR
provides original online content and audio streaming of its news programming.
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NPR.org offers hourly newscasts, special features and 10 years of archived audio
and information.
New England First Amendment Coalition is a non-profit organization
working in the six New England states to defend, promote and expand public
access to government and the work it does. The coalition is a broad-based
organization of people who believe in the power of transparency in a democratic
society. Its members include lawyers, journalists, historians and academicians, as
well as private citizens and organizations whose core beliefs include the principles
of the First Amendment. The coalition aspires to advance and protect the five
freedoms of the First Amendment, and the principle of the publics right to know
in our region. In collaboration with other like-minded advocacy organizations,
NEFAC also seeks to advance understanding of the First Amendment across the
nation and freedom of speech and press issues around the world.
New England Newspaper and Press Association, Inc. (NENPA) is the
regional association for newspapers in the six New England States (including
Massachusetts). NENPAs corporate office is in Dedham, Massachusetts. Its
purpose is to promote the common interests of newspapers published in New
England. Consistent with its purposes, NENPA is committed to preserving and
ensuring the open and free publication of news and events in an open society.

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The New England Society of Newspaper Editors (NESNE) has, since 1955, served
as the premier organization comprising editors at newspapers, broadcast stations,
and Internet sites throughout the six New England states. NESNE advocates on
behalf of its more than 1,000 members to provide training through workshops and
seminars, help them grow their audience, present awards to recognize excellence in
our industry and lend assistance and with Open Meeting and First Amendment and
public records law issues.
The New York Times Company is the publisher of The New York
Times and The International Times, and operates the news website nytimes.com.
News Corporation is a global, diversified media and information services company
focused on creating and distributing authoritative and engaging content to
consumers throughout the world. The company comprises leading businesses
across a range of media, including: news and information services, digital real
estate services, book publishing, digital education, and sports programming and
pay-TV distribution.
Newspaper Association of America (NAA) is a nonprofit organization
representing the interests of more than 2,000 newspapers in the United States and
Canada. NAA members account for nearly 90% of the daily newspaper circulation
in the United States and a wide range of non-daily newspapers. The Association
focuses on the major issues that affect todays newspaper industry, including
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protecting the ability of the media to provide the public with news and information
on matters of public concern.
North Jersey Media Group Inc. (NJMG) is an independent, family-owned
printing and publishing company, parent of two daily newspapers serving the
residents of northern New Jersey: The Record(Bergen County), the states secondlargest newspaper, and the Herald News (Passaic County). NJMG also publishes
more than 40 community newspapers serving towns across five counties and a
family of glossy magazines, including (201) Magazine, Bergen Countys premiere
magazine. All of the newspapers contribute breaking news, features, columns and
local information to NorthJersey.com. The company also owns and publishes
Bergen.com showcasing the people, places and events of Bergen County.
Online News Association (ONA) is the worlds largest association of
online journalists. ONAs mission is to inspire innovation and excellence among
journalists to better serve the public. ONAs more than 2,000 members include
news writers, producers, designers, editors, bloggers, technologists, photographers,
academics, students and others who produce news for the Internet or other digital
delivery systems. ONA hosts the annual Online News Association conference and
administers the Online Journalism Awards. ONA is dedicated to advancing the
interests of digital journalists and the public generally by encouraging editorial

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integrity and independence, journalistic excellence and freedom of expression and

access.
Radio Television Digital News Association (RTDNA) is the worlds
largest and only professional organization devoted exclusively to electronic
journalism. RTDNA is made up of news directors, news associates, educators and
students in radio, television, cable and electronic media in more than 30 countries.
RTDNA is committed to encouraging excellence in the electronic journalism
industry and upholding First Amendment freedoms.
The Seattle Times Company, locally owned since 1896, publishes the daily
newspaper The Seattle Times, together with The Issaquah Press, Yakima HeraldRepublic, Walla Walla Union-Bulletin,Sammamish Review and Newcastle-News,
all in Washington state.
Society of Professional Journalists (SPJ) is dedicated to improving and
protecting journalism. It is the nations largest and most broad-based journalism
organization, dedicated to encouraging the free practice of journalism and
stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta
Chi, SPJ promotes the free flow of information vital to a well-informed citizenry,
works to inspire and educate the next generation of journalists and protects First
Amendment guarantees of freedom of speech and press.

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Stephens Media LLC is a nationwide newspaper publisher with operations

from North Carolina to Hawaii. Its largest newspaper is the Las Vegas ReviewJournal.
Time Inc. is the largest magazine publisher in the United States. It publishes
over 90 titles, including Time, Fortune, Sports Illustrated, People, Entertainment
Weekly, InStyle and Real Simple. Time Inc. publications reach over 100 million
adults, and its websites, which attract more visitors each month than any other
publisher, serve close to two billion page views each month.
Tribune Publishing Company is one of the countrys leading publishing
companies. Tribune Publishings ten daily publications include the Chicago
Tribune, Los Angeles Times, The Baltimore Sun, Sun Sentinel (South Florida),
Orlando Sentinel, Hartford Courant, The Morning Call, Daily Press, Capital
Gazette, and Carroll County Times. Popular news and information websites,
including www.chicagotribune.com and www.latimes.com, complement Tribune
Publishings publishing properties and extend the companys nationwide audience.
The Tully Center for Free Speech began in Fall, 2006, at Syracuse
Universitys S.I. Newhouse School of Public Communications, one of the nations
premier schools of mass communications.
WP Company LLC (d/b/a The Washington Post) publishes one of the
nations most prominent daily newspapers, as well as a website,
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www.washingtonpost.com, that is read by an average of more than 20 million

unique visitors per month.

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APPENDIX H
Corporate Disclosure Statement of Amici Curiae
The Reporters Committee for Freedom of the Press is an unincorporated
association of reporters and editors with no parent corporation and no stock.
American Society of News Editors is a private, non-stock corporation that
has no parent.
The Associated Press is a global news agency organized as a mutual news
cooperative under the New York Not-For-Profit Corporation law. It is not publicly
traded.
Association of Alternative Newsmedia has no parent corporation and does
not issue any stock.
The Association of American Publishers, Inc. is a nonprofit organization that
has no parent and issues no stock.
Bloomberg L.P.'s parent corporation is Bloomberg Inc., which is privately
held, and no publicly held corporation owns 10% or more of its stock.
Cable News Network, Inc. is a wholly owned subsidiary of Turner
Broadcasting System, Inc., which itself is a wholly owned subsidiary of Time
Warner Inc., a publicly traded corporation.

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California Newspaper Publishers Association is a mutual benefit corporation

organized under state law for the purpose of promoting and preserving the
newspaper industry in California.
Cox Media Group, Inc. is privately owned, and no publicly held corporation
owns 10% or more of its stock.
Dow Jones is a Delaware corporation with its principal place of business in
New York. News Corporation, a publicly held company, is the indirect parent
corporation of Dow Jones. Ruby Newco, LLC, a subsidiary of News Corporation
and a non-publicly held company, is the direct parent of Dow Jones. No publicly
held company directly owns 10% or more of the stock of Dow Jones.
The E.W. Scripps Company is a publicly traded company with no parent
company. No individual stockholder owns more than 10% of its stock.
First Amendment Coalition is a nonprofit organization with no parent
company. It issues no stock and does not own any of the partys or amicus stock.
First Look Media, Inc. is a non-profit non-stock corporation organized under
the laws of Delaware. No publicly-held corporation holds an interest of 10% or
more in First Look Media, Inc.
Forbes has no parent corporation and no company owns 10% or more of its
stock.

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Hearst Corporation is privately held and no publicly held corporation owns

10% or more of Hearst Corporation.
The McClatchy Company is publicly traded on the New York Stock
Exchange under the ticker symbol MNI. Contrarius Investment Management
Limited owns 10% or more of the common stock of The McClatchy Company.
MediaNews Group, Inc. is a privately held company. No publicly-held
company owns ten percent or more of its equity interests.
National Newspaper Association is a non-stock nonprofit Missouri
corporation. It has no parent corporation and no subsidiaries.
The National Press Club is a not-for-profit corporation that has no parent
company and issues no stock.
National Press Photographers Association is a 501(c)(6) nonprofit
organization with no parent company. It issues no stock and does not own any of
the partys or amicus stock.
National Public Radio, Inc. is a privately supported, not-for-profit
membership organization that has no parent company and issues no stock.
New England First Amendment Coalition has no parent corporation and no
stock.

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New England Newspaper and Press Association, Inc. is a non-profit

corporation. It has no parent, and no publicly held corporation owns 10% or more
of its stock.
The New England Society of Newspaper Editors has no parent corporation
and does not issue any stock.
The New York Times Company is a publicly traded company and has no
affiliates or subsidiaries that are publicly owned. No publicly held company owns
10% or more of its stock.
News Corporation has no parent company and no publicly held company
owns 10% or more of its shares.
Newspaper Association of America is a nonprofit, non-stock corporation
organized under the laws of the commonwealth of Virginia. It has no parent
company.
North Jersey Media Group Inc. is a privately held company owned solely by
Macromedia Incorporated, also a privately held company.
Online News Association is a not-for-profit organization. It has no parent
corporation, and no publicly traded corporation owns 10% or more of its stock.
Radio Television Digital News Association is a nonprofit organization that
has no parent company and issues no stock.

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The Seattle Times Company: The McClatchy Company owns 49.5% of the
voting common stock and 70.6% of the nonvoting common stock of The Seattle
Times Company.
Society of Professional Journalists is a non-stock corporation with no parent
company.
Stephens Media LLC is a privately owned company with no affiliates or
subsidiaries that are publicly owned.
Time Inc. is a publicly traded corporation. No publicly held corporation
owns 10% or more of its stock.
Tribune Publishing is publicly held. Oaktree Tribune, L.P. owns 10 percent
or more of Tribune Publishing Companys stock.
The Tully Center for Free Speech is a subsidiary of Syracuse University.
WP Company LLC d/b/a The Washington Post is a wholly owned subsidiary
of Nash Holdings LLC. Nash Holdings LLC is privately held and does not have
any outstanding securities in the hands of the public.

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APPENDIX I
Of Counsel for Amici Curiae
Kevin M. Goldberg
Fletcher, Heald & Hildreth, PLC
1300 N. 17th St., 11th Floor
Arlington, VA 22209
Counsel for American Society of News Editors
Counsel for Association of Alternative Newsmedia
Karen Kaiser
General Counsel
The Associated Press
450 W. 33rd Street
New York, NY 10001
Jonathan Bloom
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Counsel for The Association of American Publishers, Inc.
Randy L. Shapiro
Global Media Counsel
Bloomberg LP
731 Lexington Avenue
New York, NY 10022
David C. Vigilante
Johnita P. Due
Cable News Network, Inc.
1 CNN Center
Atlanta, GA 30303
Jim Ewert
General Counsel
California Newspaper Publishers Association
2000 O Street, Suite 120
Sacramento, California 95811

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Lance Lovell
Managing Attorney, Disputes
Cox Media Group, Inc.
6205 Peachtree Dunwoody Road
Atlanta, GA 30328
Mark H. Jackson
Jason P. Conti
Jacob P. Goldstein
Dow Jones & Company, Inc.
1211 Avenue of the Americas
New York, NY 10036
Counsel for Dow Jones & Company, Inc.
David M. Giles
Vice President/
Deputy General Counsel
The E.W. Scripps Company
312 Walnut St., Suite 2800
Cincinnati, OH 45202
Peter Scheer
First Amendment Coalition
534 Fourth St., Suite B
San Rafael, CA 94901
Lynn Oberlander
General Counsel, Media Operations
First Look Media, Inc.
162 Fifth Avenue
8th Floor
New York, New York 10010
(347)-453-8111
MariaRosa Cartolano
General Counsel
Forbes Media LLC
60 Fifth Avenue
New York, NY 10011

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Jonathan Donnellan
Kristina Findikyan
Hearst Corporation
Office of General Counsel
300 W. 57th St., 40th Floor
New York, NY 10019
Karole Morgan-Prager
Juan Cornejo
The McClatchy Company
2100 Q Street
Sacramento, CA 95816
David S. Bralow
General Counsel
MediaNews Group
448 Lincoln Highway
Fairless Hills, PA 19030
Tonda F. Rush
Counsel to National Newspaper Association
CNLC, LLC
200 Little Falls Street, Suite 405
Falls Church, VA 22046
(703) 237-9801 (p) (703) 237-9808 (fax)
[email protected]
Charles D. Tobin
Holland & Knight LLP
800 17th Street, NW
Suite 1100
Washington, DC 20006
Counsel for The National Press Club
Mickey H. Osterreicher
1100 M&T Center, 3 Fountain Plaza,
Buffalo, NY 14203
Counsel for National Press Photographers Association

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Jonathan Hart
Ashley Messenger
National Public Radio, Inc.
1111 North Capitol St. NE
Washington, D.C. 20002
Robert A. Bertsche (BBO #554333)
Prince Lobel Tye LLP
100 Cambridge Street
Boston, MA 02114
Counsel for the New England First Amendment Coalition
Counsel for New England Newspaper and Press Association, Inc.
Counsel for New England Society of Newspaper Editors
David McCraw
V.P./Assistant General Counsel
The New York Times Company
620 Eighth Avenue
New York, NY 10018
Mark H. Jackson
News Corporation
1211 Avenue of the Americas
New York, NY 10036
Counsel for News Corporation
Kurt Wimmer
Covington & Burling LLP
1201 Pennsylvania Ave., NW
Washington, DC 20004
Counsel for the Newspaper Association of America
Jennifer A. Borg
General Counsel
North Jersey Media Group Inc.
1 Garret Mountain Plaza
Woodland Park, NJ 07424

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Michael Kovaka
Cooley LLP
1299 Pennsylvania Avenue, NW
Suite 700
Washington, DC 20004
Counsel for Online News Association
Kathleen A. Kirby
Wiley Rein LLP
1776 K St., NW
Washington, DC 20006
Counsel for Radio Television Digital News Association
Bruce D. Brown
Gregg P. Leslie
The Reporters Committee for Freedom of the Press
1101 Wilson Blvd., Suite 1100
Arlington, VA 22209
Bruce W. Sanford
Laurie A. Babinski
Baker & Hostetler LLP
1050 Connecticut Ave., NW
Suite 1100
Washington, DC 20036
Counsel for Society of Professional Journalists
Mark Hinueber
Vice President/General Counsel & Director of Human Resources
Stephens Media LLC
P.O. Box 70
Las Vegas, NV 89125
Andrew Lachow
Vice President and Deputy
General Counsel Litigation
Time Inc.
1271 Avenue of the Americas
New York, NY 10020

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Karen H. Flax
Tribune Publishing Company
435 North Michigan Ave.
Chicago, IL 60611
[email protected]
Jeff Glasser
Tribune Publishing Company
202 W. 1st Street
Los Angeles, CA 90012
[email protected]
John B. Kennedy
James A. McLaughlin
Kalea S. Clark
The Washington Post
1150 15th Street, N.W.
Washington, D.C. 20071

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