TV Station Ordered to Expunge Archived Story About Teacher's Dismissed Domestic Violence Charges

The "right to be forgotten" comes to Texas.

|The Volokh Conspiracy |


Until a week ago, Houston's ABC-13 TV station, KTRK, had the following story on its web site (I quote the July 13, 2017 version, which had been updated from its original 2016 story):

An Alief ISD teacher is no longer in the classroom after he was arrested on allegations of domestic violence.

Damon Barone is charged with assault-family violence. According to a statement from Alief ISD, Barone was a teacher at Mahanay Elementary School but has not been on campus since April 4. He's currently on administrative leave and the district says "he will not return at any point."

Alief ISD officials say the incident did not happen on school property or at a school event.

The charges have since been dropped, but Barone remains no longer employed with the school district.

About a week ago, that story disappeared from the site. And that disappearance seems to be linked to a Houston court's June 26 expunction order (signed by Judge Michael Landrum), which purports to cover KTRK.

In many states, a person who has been charged with a crime can petition to expunge his records when the charges are dropped, as the charges against Barone were. (Indeed, even people who have been convicted of some kinds of crimes can petition to expunge their records some time after they finish their sentence.) These laws, though, on their face deal with the government's own maintenance of its records; they order the removal (or the concealment) of records kept by courts, law enforcement, and the like. Texas calls this process expunction, but it's more often called expungement.

A few laws also require certain private online criminal records databases to remove such information: A Texas statute, for instance, applies to companies that keep such information and charge fees to remove or correct them. But the law expressly doesn't apply to newspapers, and would violate the First Amendment if it tried to apply to them. (One can debate whether it violates the First Amendment even as to the repositories that it does cover, but that's a separate matter.)

The court thus had no statutory authority for ordering KTRK to remove the story, and no constitutional power to do so, either. Yet the order apparently expressly listed KTRK, together with some lawyers and a bail bond company as among the "agencies subject to this order." And shortly afterwards, KTRK did indeed remove the story. (Google was also asked to deindex the story, but it generally doesn't deindex U.S. material based just on expungement orders, as opposed to injunctions against libel.)

Unfortunately, I can't seem to get any information from anyone about the order, perhaps in part precisely because of the expungement. The DA's office, which is listed as one of the bound agencies in the order, and as having not objected to its inclusion in the order, expressly said that it couldn't comment. The court wouldn't confirm for me whether the text of the order was authentic (I have no specific reason to doubt its authenticity, but I've seen so many forged court orders that I now try to check each one).

Neither Mr. Barone nor KTRK got back to me about it. It's conceivable that KTRK didn't decide to remove the story because of the order as such, but just voluntarily removed the story because Mr. Barone persuaded it to do so given that the charges had been dropped against him; but the story had for a year noted the dropped charges, and the most obvious change since then was the issuance of the expungemement order. It's also possible that the court didn't examine closely the list of target agencies, and didn't focus on the inclusion of KTRK and the lawyers alongside the government agencies, but again I can't know.

What I do know, assuming the order is authentic, is that a Houston court order purports to institute a "right to be forgotten" as to this particular news story. And this is at least the second such case in the last two years: The first case that I know of is the even more troubling Derek Collier Thorworth matter, where an expungement order seemed to require the media to remove a story about a county constable who had pleaded guilty to abusing a prisoner, and where the constable demanded that a TV station indeed do so, based on the order. (The station fought the order in court, doubtless at considerable expense, and some months later got the order modified to exclude the media.) Some might think that's a sound approach, but it's not authorized by Texas law and not consistent with the First Amendment.

(Many thanks to the Lumen Database all its help with the research for this and many other posts.)