Attempt to vanish articles about North Carolina local school board member's (now expunged) 2011 arrest

|The Volokh Conspiracy |

The Sanford Herald's Zachary Horner reports (links mine):

A complaint was filed with Google Sunday morning under the name of Sherry Womack, a Lee County Board of Education member, seeking to remove search results related to her 2011 arrest.

The request asked Google to remove URLs linking to The Herald's April 14 story "Womack addresses 2011 arrest" and four separate URLs from the website The Rant, including two stories, her mugshot and the original arrest report. The articles detail Womack's 2011 arrest for breaking and entering and her response.

The complaint can be found on the Lumen Database (lumendatabase.org), a collection of requests to remove materials from websites. The request cites a court order "to destroy all records" of the case.

Sunday's complaint also links to a copy of the Petition and Order of Expunction for the charge, listed as a misdemeanor breaking and entering that took place on May 7, 2011. …

The process is called "de-indexing," in which websites or individual pages are removed from Google's search index. The optimal result for those seeking a de-indexing is that the links cannot be found by a Google search.

What was requested under Womack's name is not illegal. Google Support indicates that sites can be removed from its index and search results "if (Google) believes it is obligated to do so by law, if the sites do not meet Google's quality guidelines, or for other reasons, such as if sites detract from users' ability to locate relevant information." [But w]hen it comes to instances like Womack's, which is a libel claim and is a newspaper, not much usually happens….

Multiple voicemails left for Womack were unreturned by press time Tuesday.

Womack is also the wife of Jim Womack, a North Carolina politician who is running for chairman of the state Republican Party.

My view: People shouldn't be trying to secretly vanish stories about elected officials, behind the backs of voters and reporters, to hide from voters factually accurate information—however unfair and obsolete they may think it to be. And voters should be informed when people try to do this (even if this attempt was likely doomed to failure, since Google apparently doesn't actually deindex stories based on American expungement orders).

UPDATE: I originally stated that Womack had attempted to get the material deindexed, because the request was submitted under her name, because she would have been the obvious beneficiary of the removal, and because her lawyer had earlier demanded that the newspaper "cease and desist from publishing any story about Ms. Womack that makes any mention or innuendo that she has ever had any involvement with law enforcement in Buncombe County" (i.e., the very materials that the deindexing request was aimed at). But on reflection (after the post was up for 15 minutes) I realized that I should refrain from drawing that inference, and I changed the title and a few parts of the text to focus on what I know—that someone (using her name) had asked for the material about her to be deindexed. My apologies for the initial imprecision.

UPDATE: There's a glitch with the comments, which is being worked on; but in the meantime, here are the ones that had been posted:

rpg16 5/17/2017 8:19 AM PDT: What she did does not appear to be illegal or, save for the fact that she appears to have somewhat exaggerated the scope of the court order, immoral, and I don't really see why this event deserves the level of attention that, for example, the forged court orders have justly received. She asked Google to de-index and Google said no. If I was in that situation I might do the same thing, and I don't blame her at all for trying.

Not a believer 7:31 AM PDT: So, another repuglican office seeker is trying to protect his criminal wife….So, what else is new?

QuantumCatBox 5/16/2017 7:26 PM PDT [Edited]: In the Court Order that is linked to Womack writes for "Explanation of Court Order": "Court order to destroy all records." But she was never issued a court order to destroy all records. On the petition that the judge signed Womack checked off the box next to "I hereby move for an expunction pursuant to G.S. 15A-146 and certify as follow:"

N.C.G.S.A. Sec. 15A-146(a) If any person is charged with a crime, either a misdemeanor or a felony, … and the charge is dismissed, or a finding of not guilty or not responsible is entered, that person may apply to the court of the county where the charge was brought for an order to expunge from all official records any entries relating to his apprehension or trial (emphasis added).

(b) The court may also order that the said entries, including civil revocations of drivers licenses as a result of the underlying charge, shall be expunged from the records of the court, and direct all law-enforcement agencies, the Division of Adult Correction of the Department of Public Safety, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as being record of the same to expunge their records of the entries (emphasis added).

I do not believe Womack received a court order to "destroy all records" but rather received a court order pursuant to NCGSA 15A-146 to expunge from "all official records" any information relating to her arrest and trial. In the context of the statute official records pretty clearly indicates records held by a government agency. It appears that she has mischaracterized the court order that she was granted, or at least her lawyer did.

I'm not sure if it was this or another blog but I remember a while back reading a post about a case dealing with the issue of expungement and public records. The judge's opinion delved into the metaphysical of how an expungement does not mean that the arrest never actually happened.

King Goat 5/16/2017 7:08 PM PDT [Edited]: The fetishism of 'free speech' continues, and all other values must be steamrolled over.

Police make a ton of mistaken, and all too often rotten, arrests. Thankfully we have a justice system which interposes others who can recognize this fact and reverse their mistakes and miscarriages of justice. Of course, politically and sociologically, the harm is done to one's political, social or economic endeavors from the arrest itself. But no, a society which has long recognized 'sealing' records can't also allow suppression (and by 'suppression' we mean 'can't use government regulated medium to report existence of') of reports of a mistaken, but of course still damaging to actual human beings, government act! That would be to trifle with free speech, which brooks no exceptions (oh, except, 'obscenity,' trade secrets, non-disclosure agreements, defamation, etc., etc.,), no matter which little people get trampled for (oft departed from) abstract principles sake!

EugeneVolokh 5/16/2017 7:44 PM PDT: King Goat: How do you know the arrest was mistaken? Maybe it was mistaken, in the sense that Womack wasn't likely guilty of the crime. Or maybe it was sound, in the sense that she was likely guilty, but for various reasons the case got dropped (e.g., the victim changed her mind about complaining). Or maybe she was likely guilty, but her husband—a County Commissioner at the time—pulled strings to get the case thrown out. (Note that the arrest report asserts that, when the police officer tried to execute the arrest warrant, the husband told the police officer that "he was Commissioner Womack" and "asked if this could be somehow taken away because it was all a big misunderstanding"—maybe legitimate husbandly concern, or maybe not.)

How can we know which of those possibilities is accurate if—as you seem to suggest—it's illegal for people to even talk about the arrest (or if they do talk about it online, their posts get vanished from the Internet)?

King Goat 5/16/2017 8:03 PM PDT [Edited]: 1. As you acknowledge, "Maybe it was mistaken, in the sense that Womack wasn't likely guilty of the crime." Let's take that as true arguendo. Your preferred rule results in de facto harm to her politically, socially, and economically, no? Maybe there are countervailing social benefits, but let's recognize this first, no?

2. We're not talking about it being illegal to talk about the arrest but preventing a national search engine on a regulated medium from reporting stories on the subject.

3. What is your argument for why a defamation, trade secret or obscenity exception to 'free speech' is allowed, but not one that would protect someone who really was maliciously or grossly mistakenly arrested (which, again, de facto, according to 1, has many deleterious consequences) from the certain de facto consequences of dissemination of that event?

4. How do you differentiate this from the long practice of 'sealing' records otherwise accessible?

EugeneVolokh 5/16/2017 8:16 PM PDT: 1. If the political harm to her stems from voters being a bit suspicious of an elected official, I'm not sure why that should be elevated over people's free speech rights.

2. I'm not sure what you mean by "regulated medium"; I don't think that Google should be regulated by the government.

3. If your argument is that speech about the arrest is generally protected from governmental restriction, except that display of the information by Google can be restricted, that strikes me as hard to defend—especially since the ability to find such information is an important part of public discussion about it.

4. If you want to know why people are worried about "slippery slopes," you need go no further than your item 3. The defamation exception seems nicely limited to false statements of fact (that, after all, is its rationale, set forth in Gertz v. Robert Welch, Inc.)—but now you're using it to argue in favor of suppressing accurate reports of government action (here, the arrest). The obscenity exception is highly flawed, and endures, I think, largely because it is so rarely used; moreover, the Court has tried hard to limit it to sexually themed material (see, e.g., the violent video game case and the animal cruelty video case, which refused to extend it even to such material), and to material that lacks serious political value—yet now you're using it as an analogy to justify restrictions on information about the arrest of elected political officials. And it's not even clear that there is an exception for trade secrets, in the sense of third-party disclosure of trade secrets (as opposed to disclosure of trade secrets by people who promised to keep them secrets); but now you're using it to argue in favor of restricting disclosure by search engines and others of what government officials have done in the course of executing the law.

If your proposed new First Amendment exception is adopted, what other, still broader new exceptions will it be used to argue for?

5. The difference between restricting the dissemination of this information and sealing is the difference between suppressing speech by the public (or by search engines reporting on what the public is saying), and the government itself deciding not to reveal certain information. The first is constrained by the First Amendment; the second is generally not, except insofar as the rather narrower First Amendment right of access to court records (and not all of these are court records) is involved.

82dtrooper 8:03 AM PDT: Vanish is not a transitive verb. Things vanish, they do not "get vanished."

EugeneVolokh 8:44 AM PDT: 82dtrooper: It's a bit unusual, but I'm trying to boost it. The Oxford English Dictionary gives a definition of "vanish" as a transitive verb, "To cause to disappear; to remove from sight. Now chiefly with reference to conjuring." One of its recent examples (from H.G. Wells) illustrates this well: "Lenin conjured government by mass-democracy out of sight, 'vanished' it as conjurors say, by his reorganization of the Communist Party." (I like the analogy to a magician making something disappear through mysterious means.)
And the word goes back many centuries; the first citation given by the OED is in the mid-1400s.

So I appreciate that it might annoy some readers, because it's unusual and because people might erroneously think that it's nonstandard. But I think that this is one instance where the unusual nature of the world helps draw the reader's attention to the practice.

CensoredPianist 4:20 AM PDT: "The fetishism of 'free speech' continues, and all other values must be steamrolled over. "

The "fetishism of 'free speech" is in the constitution. It is intended to "steamroll" the ignorance that you profess to value.

jdgalt 5/16/2017 6:28 PM PDT: Thanks to articles such as this one, attempts to "vanish" embarrassing information, even without a lawsuit, will lead to the Streisand Effect. I predict the same even in countries with "right to be forgotten" laws.

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