The Volokh Conspiracy
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From this morning's Martin v. Hearst Corp. (2d Cir. Jan. 28, 2015):
Lorraine Martin was arrested in 2010. Local media outlets published stories accurately reporting the arrest and that Martin was charged with various drug-related offenses.
Although she concedes that the articles were factually true at the time they were published, Martin sued the publishers for libel and related claims on the theory that it became false and defamatory to report her arrest once the charges against her were nolled [i.e., subjected to a nolle prosequi -EV] and the records of her arrest and prosecution erased pursuant to Connecticut's Criminal Records Erasure Statute, Conn. Gen. Stat. § 54-142a (the "Erasure Statute"). [Footnote: A nolle prosequi is a "unilateral act by a prosecutor, which ends the pending proceedings without an acquittal and without placing the defendant in jeopardy."]
The Erasure Statute requires that criminal records related to an arrest be destroyed if the individual is subsequently found not guilty or pardoned or if the charges are nolled or dismissed. The statute further provides that "[a]ny person who shall have been the subject of such an erasure 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." Conn. Gen. Stat. § 54-142a(e)(3). This appeal requires us to determine whether, because the charges against her were nolled and she is now "deemed to have never been arrested," Martin is entitled to assert various publication-related claims against the publishers of contemporaneous news accounts of her arrest on the ground that those accounts are now false or misleading.
We conclude that the Erasure Statute does not render tortious historically accurate news accounts of an arrest and therefore affirm the district court's grant of summary judgment for the Defendants….
Although Martin concedes that she was, in fact, arrested on August 20, 2010, she argues that it became false to publish statements regarding the arrest after the charges against her were nolled. She reasons that the Erasure Statute rendered it factually false to continue to state that she was arrested and that the Defendants' once-true reports have become defamatory.
Martin misunderstands the effect of the Erasure Statute…. [T]he Erasure Statute requires the state to erase certain official records of an arrest and grants the defendant the legal status of one who has not been arrested. [Statutory construction arguments omitted; read the opinion if you want to see them. -EV] But the Erasure Statute's effects end there.
The statute creates legal fictions, but it does not and cannot undo historical facts or convert once-true facts into falsehoods. Just as the Erasure Statute does not prevent the government from presenting witness testimony at a later trial that describes the conduct that underlies an erased arrest, the statute does not render historically accurate news accounts of an arrest tortious merely because the defendant is later deemed as a matter of legal fiction never to have been arrested….
Because there is no dispute that the articles published by the Defendants accurately report Martin's arrest, her various publication-related tort claims necessarily fail. Martin's claims for libel and placing another in a false light fail because the articles do not contain falsehoods. Her claim for negligent infliction of emotional distress fails because there is nothing negligent about publishing a true and newsworthy article. And her claim for invasion of privacy by appropriation fails because a newspaper does not improperly appropriate an individual's name or likeness merely by publishing an article that brings the individual's activities before the public….
Martin next argues that even if the Erasure Statute does not make the statements about her arrest technically false, the reports of her arrest are nonetheless defamatory because they only tell part of the story. The articles report that she was arrested and charged without mentioning that the criminal case against her was eventually nolled.
It is axiomatic, of course, that truth is an absolute defense to a defamation claim. But in certain circumstances even a technically true statement can be so constructed as to carry a false and defamatory meaning by implication or innuendo. Where a publication implies something false and defamatory by omitting or strategically juxtaposing key facts, the publication may be actionable even though all of the individual statements are literally true when considered in isolation.
The classic example of defamation by implication is Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978), in which a newspaper reported that a woman, upon arriving at the home of another woman and finding her own husband there "first fired a shot at her husband and then at [the other woman], striking her in the arm." The article neglected to mention, however, the additional facts that several neighbors and the husband of the other woman were also present, that all were sitting together in the living room talking, and that the shooting was accidental. Even though the statements in the article were all technically true, the article falsely implied that the husband and the other woman had been shot at because they were caught in an adulterous affair and had become targets of an enraged wife-a meaning both false and defamatory.
The news reports at issue in this case, however, do not imply any fact about Martin that is not true. They simply state that she was arrested and criminally charged, both of which Martin admits are true. Reasonable readers understand that some people who are arrested are guilty and that others are not. Reasonable readers also know that in some cases individuals who are arrested will eventually have charges against them dropped. Reporting Martin's arrest without an update may not be as complete a story as Martin would like, but it implies nothing false about her. Accordingly, we reject Martin's contention that the reports of her arrest are defamatory because they fail to mention that the case against her was eventually nolled.
Jeffrey Bils and I filed, via the UCLA First Amendment Amicus Brief Clinic, an amicus brief on behalf of the Reporters Committee for Freedom of the Press. The brief supported the result that this court reaches, which is also consistent with decisions from Massachusetts, New Jersey and Oregon appellate courts.