A federal court recently and wrongly frowned on the right to smile, but we hope that smiling is eventually awarded the constitutional protection it deserves. What is the point of pursuing happiness if you can’t express it freely?
That was the point Christopher Johnson bravely made to police photographers while being booked on charges of drunk driving in Houston in 2016. When told to stop smiling, Mr. Johnson replied to the booking officers, “This is how I always take my pictures. I have a beautiful family at home and I’m a successful business owner and I’m going to beat this case. Why wouldn’t I smile, I have nothing to be mad about.”
The booking officers didn’t like that. In a suit against them and Harris County, Texas, filed in federal court, Mr. Johnson alleged that one replied, “Well I’ll tell you what! If you don’t stop smiling, we’re going to make you stop smiling.”
As the federal court decision records, “At this point, plaintiff contends that [the officers] each placed a hand on his neck and held plaintiff’s head before the camera. Plaintiff’s official photograph from Harris County Jail shows two officers placing their hands on the front and back of plaintiff’s neck as he continues to smile.”
It’s a shocking mugshot in which the smile is obviously not the most alarming factor.
In a pre-trial hearing the federal judge rejected Mr. Johnson’s claim that the officers violated his First Amendment right to smile, finding no judicial precedents for the claim.
The judge wrote, “The question is whether there was a clearly established constitutional right to smile at the time that Plaintiff was booked. ... Here, plaintiff has not cited any authority — let alone controlling or robust authority — that clearly establishes a constitutional right to smile in a jail photograph.”
This may be proper legal reasoning, but it reaches an absurd conclusion.
Standards for mugshots vary from state to state and even from jail to jail in some cases. And while it’s important that mugshots be more or less standard and accurately depict the person being photographed, a simple smile doesn’t represent any obvious problem.
The judge did, however, rule that Mr. Johnson’s Fourteenth Amendment due process claim against the officers for using excessive force could go to trial.
Soon thereafter, Harris County reached a settlement with Mr. Johnson, according to a report earlier this month by legal blogger Eugene Volokh. That was a wise decision in our view, considering the troubling nature of the booking photograph.
Because the case was settled, the judge’s decision against the right to smile cannot be appealed to a higher court. That is a pity. But Mr. Johnson has started a campaign for the right to smile that, we hope, will not end until it is vindicated.