John G. Browning Oct. 8, 2012, 3:22pm

Most states, including Texas, have laws allowing for the expungement of criminal convictions under certain circumstances. Under this procedure, it has the legal effect of what we used to call a “do-over” on the playground; it’s as if the conviction never happened. 

So, job applicants with a criminal conviction that’s been expunged from their records can legitimately answer “no” to a question inquiring about criminal convictions, safe in the assumption that their records have been wiped of any such offense.

But what if someone who knows about such a conviction talks about it or publishes something about it?  Can they be sued for defamation by the person who received the expungement, and who understandably doesn’t want the public to know about something that—in the eyes of the criminal justice system, at least—never happened?

That’s a question that a number of courts have recently been asked to answer.  In Martin v. Hearst Corp., a case filed in June 2012 in a Connecticut state court, the plaintiff Lorraine Martin is suing several newspaper publishers because their online publications contain mentions of the plaintiff being arrested and charged with drug violations on Aug. 20, 2010.

Is this defamatory because Martin wasn’t arrested?  No; Martin concedes that the original Aug. 26, 2010, newspaper report of the drug charges was accurate.  However, she says the arrest record (for reasons that aren’t clear) has since been erased, yet in the world of cyberspace, the arrest and any report of it lives on.

The plaintiff says these online versions of the original story are “false and defamatory”—not because the arrest didn’t happen, but because Connecticut’s state erasure (or expungement) law provides that a person who was the subject of charges that were erased “shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”

In fact, Martin’s lawsuit seeks certification as a class action lawsuit on behalf of anyone who’s had an arrest erased but whose arrest still lives on in the online archives of a media outlet.

But can a newspaper or an individual be guilty of libel for telling what may, admittedly, be an unpleasant truth?  An expungement or erasure statute can’t rewrite history, nor can it make someone pretend that something didn’t happen.  The actual event—in Martin’s case, an arrest—is a historical fact, albeit one she might care to forget.

At best, a newspaper might want to avoid a “libel by omission” by making sure to update stories that appear online with additional information, such as the fact that the charges were dropped or that the arrest has been “erased” from someone’s records.

Last year, the New Jersey Supreme Court considered a similar case, where the plaintiff argued that the record of his drug conviction was expunged and therefore his conviction is deemed, as a matter of law, not to have occurred. As a result, the plaintiff claimed, disseminating the information that he was convicted of a crime violated his privacy rights.

The New Jersey Supreme Court rejected the plaintiff’s claims.  Although the court acknowledged that the expungement statute had the legal effect of making it as if a conviction had never occurred, it doesn’t transform a once-true fact into a lie.

The court noted that the statute “does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary.  It cannot banish memories . . . it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.”

No one knows ultimately how the Connecticut litigation will turn out, but it’s likely that if common sense prevails, the result will be similar to New Jersey’s ruling.

But, over in Europe, it might be a different story, since not only is there no First Amendment, but also because Europeans are rapidly warming to the notion of a so-called “right to be forgotten.”  Under this doctrine, anyone who has personal data about them retained shall have the right to object to such retention.

Essentially, if older (but still accurate, although embarrassing) news stories about someone are out there, they would have the ability to have such digital dirty laundry removed.  Of course, Europe is well-known for having more stringent data privacy laws than the U.S.

Should the law permit the equivalent of the kind of convenient “memory wipe” that we see in movies like “Men in Black,” or the ability to, in effect, change the past, as in time travel movies like “Looper?”

Should it allow someone to use legal channels to deny a historical fact, no matter how inconvenient that truth might be for someone trying to distance himself from his past?

Our First Amendment would certainly protect someone who decides to speak about what was—and still is—the truth.

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