The "Arrest and Alleged Charges No Longer Exist—as If It Never Happened"

From a lawyer's letter demanding that a story about a now-expunged arrest be expunged from a newspaper as well as from the government records-but the law, fortunately, does not support this argument.

|The Volokh Conspiracy |

Expungement laws let people who have been arrested—and often even ones who have been convicted—get their records removed from government databases, or sometimes sealed so that some government agencies can access them but the public can't. There's an interesting and important policy debate about whether this should happen, and when it should happen.

But the expungement laws do not require private organizations, such as newspapers, to delete information about the arrest or conviction from their archives. (In a few places, they cover private databases of information, sometimes just ones that charge money to remove material from those database; that itself poses First Amendment problems, but those laws are sharply limited and don't purport to cover newspapers.) Nor does an expungement make the original report of the arrest or conviction libelous; it may change what facts the government keeps in its files, or what facts the criminal justice system can later use about the arrest, but it doesn't change reality of the original arrest, and it doesn't bar people from keeping up articles about the arrest.

Yet some lawyers' demand letters, unsurpisingly, argue the contrary; here, for instance, is a letter sent in November by New York lawyer Gregg M. Sidoti to the Stillwater (Okla.) News Press about an expungement of a 19-year-old's arrest for public intoxication (thanks to the Lumen Database):

My office represents [redacted] whom The Stillwater News Press defamed in an article published on the internet on May 5, 2015 and again, when you changed the story last month by adding the word "Expunged" in front of and behind his name. The story still appears at the following web address and his name is promptly displayed.

All charges against [redacted] were dismissed and the court issued a further order expunging his arrest record. Enclosed is an additional copy of the January 27, 2017 expungement order previously served on you.

Pursuant to the Court Order from the District Court of Payne County, demand is hereby made for the Stillwater News Press to remove [redacted] name from the aforementioned article. As you have already modified the story to add the word "Expunged" to the story, you certainly have the capability to remove [redacted] name from the story.

As the editor of the Stillwater News Press, it is presumed that you know the definition of the word expunged. The records, arrest and alleged charges no longer exist—as if it never happened. Your action of adding the word "Expunged" to name does not satisfy the court order. Clearly, the article still shows up when an internet search of [redacted] name is performed.

Every day in which the above internet link remains active is a violation of the court order and an additional day of damages suffered by [redacted].

[Redacted] parents already made an impassioned plea to have their son's removed and de-indexed from the article, especially with upcoming interviews for employment pending. Their pleas appear to have fallen on deaf ears.

Kindly comply with the Court Order and remove name from the May 5, 2015 story and disable the link immediately. Failure to comply with the court order will invite litigation.

Kindly, provide proof to our office that The Stillwater News Press has removed [redcated] name from the story and the internet.

Guide yourself accordingly.

To its credit, the Stillwater News Press wasn't bamboozled by this; the story is still up. The newspaper would have been entitled, of course, to remove the name as a matter of editorial discretion, and one can debate whether it should have, or whether it was right to keep this with the marker "expunged," so that people who find the article can draw their own conclusions from that accurate information. But at least we know that it wasn't duped by the legal bluster.

The attached order didn't actually order anyone other than government officials to do anything; removal of the name from the newspaper article thus wasn't a matter of "comply[ing] with the court order." And the definition of the word expunged, which I am sure the editor did know, is not "commanded to be removed from all places."

Nor does the law take the view that an expungement changes the historical facts, so that a factually accurate newspaper statement somehow becomes false (and indeed I could find no evidence that Mr. Sidoti or his clent ever made good on the threat of "litigation"). Here's how Martin v. Hearst Corp. (2d Cir. 2015) described the law, in a similar case:

Plaintiff-Appellant 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 [dropped] and the records of her arrest and prosecution erased pursuant to Connecticut's Criminal Records Erasure Statute. 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." …

[Martin] 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…. [But the statute] deems a person to have never been arrested. That is to say, as a matter of legal fiction, the defendant is no longer considered to have been arrested. Thus, the Erasure Statute bars the government from relying on a defendant's erased police, court, or prosecution records in a later trial, prohibits courts from relying on the defendant's historical status as an arrestee to enhance his sentence for a later offense, and entitles a defendant to swear under oath that he has never been arrested….

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…. [T]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…. [As a Connecticut court explained,] the Erasure Statute "operates in the legal sphere, not the historical sphere," and it "does not, and could not, purport to wipe from the public record the fact that certain historical events have taken place." Courts in other states with analogous statutes are in accord.

[Footnote: See, e.g., G.D. v. Kenny (N.J. 2011) ("[T]he expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary…. It is not intended to create an Orwellian scheme whereby previously public information—long maintained in official records—now becomes beyond the reach of public discourse on penalty of a defamation action. Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth."); Bahr v. Statesman Journal Co. (Ore. Ct. App. 1981) ("The [expungement] statute does not, however, impose any duty on members of the public who are aware of the conviction to pretend that it does not exist. In other words, the statute authorizes certain persons to misrepresent their own past. It does not make that representation true."); Rzeznik v. Chief of Police of Southampton (Mass. 1978) ("There is nothing in the statute or the legislative history to suggest that, once the fact of a conviction is sealed, it becomes nonexistent, and hence untrue for the purposes of the common law of defamation.")]

There is some case law supporting the view that, if someone is exonerated, publishing a report of a conviction without a report of the exoneration might be libelous. It may thus follow (though it isn't clear) that keeping the original report of the conviction on the site, without adding the exoneration, is libelous. But that's not so simply for retaining an arrest report—and certainly not so if the arrest report is updated to mention the expungement (which is often not based on a factual exoneration at all):

[I]n 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 (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.

So if you're a newspaper editor and get a letter such as Mr. Sidoti's, guide yourself according to the law (and, as usual, your own sense of journalistic responsibility), not according to the threats.


NEXT: The Department of Education's Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law—Part 3

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  1. Tried referencing…..0bc63.html and got 404 Not Found.

    1. Sorry, my error in transcribing the URL in the letter; just corrected it.

      1. Works now 🙂 Thanks.

        Hard to believe he got so het up for such a simple one line report on such a limited circulation web site. Must have been somebody egging him on. Lawyer trying to pad the bill? More likely parents.

  2. Why do fraudulent lawyers who knowingly lie in letters not get their licenses revoked?

    1. Because the revocation would have to be done by other lawyers.

  3. I deal with expunctions in Texas and see this a lot. In Texas, only government agencies and companies that purchase criminal history information have to comply, and the latter is part of their agreement in buying the criminal histories to begin with. Yet I still see expunction orders trying to require newspapers, the store that was shoplifted from, or all sorts of other private entities to expunge their records. Personally, I’d rather keep the official records of my case so that I can unequivocally prove that newspaper article or whatever is NOT accurate.

    1. Lawyers violate ethics if they threaten criminal action to gain an advantage in a matter they are handling. This is not that, but it seems to come close. The lawyer falsely told the newspaper it was bound by a judge’s ruling when he knew the ruling did not apply to the newspaper. Looks like an attempt to win by intimidation. This lawyer could have exposed himself to an ethics complaint.

      1. I wouldn’t bet the house on the fact that he “knew” that the order did not apply to the newspaper. Never discount the possibility of utter incompetence, especially when it involves (1) a solo general practioner, who (2) closes his correspondence with some variation of the universal signal of legal stupidity “govern yourself accordingly”.

    2. If you have been listed as a suspect in a crime but have been cleared, or if you have been released after an arrest due to mistaken identity, you had better have an official record of the disposition of your case.

      Old incomplete investigation or arrest records like that have been added to the instant background check prohibited person databases used for things like gun sale approval and gun dealer license. Keeping records of disposition of such cases is up to the person investigated or arrested.

  4. Agree with the first posting — I tried accessing the story and got a 404 error message. Maybe the newspaper did capitulate to NY lawyer Gregg M. Sidoti’s legally specious request?

    1. No, sorry, my error in transcribing the URL in the letter; just corrected it.

  5. I wonder if a kind request from the teen to the paper would’ve been more effective? Now maybe he tried that, as the demand letter references previous requests (but the tone of the prior request(s) may have been as belligerent as the lawyer’s). In any event, if I were the editor and a 19 year old cane to me and politely asked for the mention to be removed (assuming it was a minor charge like DUI or shoplifting a single item, and I wasn’t dealing with a career criminal), I probably would agree to do so as a matter of grace. But not in response to this legal letter.

    In any event, I appreciate Professor Volokh’s decision to redact the teen’s name. While the Streisand Effect can be delicious, I doubt it was his idea to go guns blazing at the paper; probably his parents’ idea or the lawyer’s own less-than-brilliant legal strategy.

    1. I appreciate your appreciation, but it should be directed towards Lumen — they redacted the name from the letter, and I’m quoting the version on their site.

  6. “In any event, I appreciate Professor Volokh’s decision to redact the teen’s name. While the Streisand Effect can be delicious, I doubt it was his idea to go guns blazing at the paper; probably his parents’ idea or the lawyer’s own less-than-brilliant legal strategy.”

    EV is always polite and considerate but he was mistaken here imho.

    The letter says the man is the client. If correct, than he is responsible for picking a bad lawyer. If incorrect, then he ought to know so he can file a complaint against the lawyer.

    1. A 19-year old lay person’s “picking a bad lawyer” is close to the bottom of the world’s list of perfidious misdeeds. Memorializing his arrest for public intoxication on a website that perhaps has much broader reach than the original newspaper article (even assuming that article has not been 404d by now as some comments above suggest) is disproportionate punishment for the sin of being 19 and not knowing the difference between a good lawyer and a bad one.

      1. Addendum: I don’t mean to revisit the discussion from an earlier post on whether, as a general matter, names should be expunged in posts of this sort. I would generally do so, at least as a matter of grace, but as EV pointed out, the issue is a difficult one. My only point above is that, assuming that one would ordinarily not expunge, the client’s choice of someone who, probably unknown to the client, was a “bad lawyer” isn’t a basis for flipping the practice to non-expunction in a particular case.

        1. oops, “ordinarily not expunge” above should be “ordinarily expunge.” My responsibility for writing a bad, nonsensical sentence will live perpetually in internet obloquy.

    2. I agree.

      Fortunately, the link is still up, and allows the public to see that the individual involved is named Evan Drake Hudgins.

      1. You know, as a matter of courtesy, you didn’t need to tell us that.

        Now the ATTORNEY’S name, Gregg M. Sidoti of New York, should be spread far and wide.

  7. I don’t know what the Oklahoma rules of professional conduct require, but if such a letter were sent in Texas by a Texas lawyer, it could only mean that the lawyer was either: (a) unethical; or (b) incompetent.

    Under the Texas Bar Rules of Professional Conduct, Rule 4.01, a Texas Rule lawyer, “in the course of representing a client shall not knowingly: (a) make a false statement of material fact OR LAW [emphasis added] to a third person.” So, making such a threat of a legally baseless defamation claim with the intent to deceive the newspaper into taking an action not legally required would subject the lawyer to possible disciplinary action by the State Bar. Of course, that’s purely hypothetical, since the State Bar of Texas would never pursue such a complaint; it’s ethical rules are only window dressing used for PR purposes with the public, not to be actually enforced against unethical lawyers. (36 years of experience makes one very cynical about the practice of law.)

    Now if the lawyer wrote that letter without actually knowing what the law was as to expungement laws, so that his conduct was not “knowing” within the Rule, that would indicate that the lawyer is incompetent.

    1. New York lawyer’s letter to an Oklahoma newspaper over an expungement order issued by a Payne County, Oklahoma, court directing the sheriff’s office, state bureau of investigation, and court clerk office to expunge records of a dismissed case. What are expungement rules in New York and can a New York lawyer apply them to an Oklahoma newspaper?

    2. I don’t know who said it first, but we should never ascribe to malice something is better explained by incompetence.

      1. I THINK that this is attributable to Napoleon Bonaparte – “Never attribute to malice that which is adequately explained by incompetence.” But, as it applies to the present case, should a State Bar really overlook the fact that an incompetent lawyer is practicing law, and in the process is causing damage to third parties?

    3. I don’t know the rule in Texas, Oklahoma or New York, but in New Jersey the law is clear: there is no “pure heart, empty head” defense to asserting a frivolous legal theory. You are responsible for knowing the law and are responsible for asserting a claim that is contrary to established law. Incompetence is not a defense.

      1. I’m curious: Is there any reason to think that the risk of disciplinary action for this kind of thing in NJ is greater than DJDiver Dan thinks it is in Texas (i.e., basically nil)?

    4. You omitted the very real possibility that he’s both.

  8. I got into the newspaper site and this is what is shows for their Crime Beat 5/5/15.

    Misdeameanor Charges

    EXPUNGED(I’m removing the name), 19, Public intoxicationEXPUNGED

  9. As the editor of the Stillwater News Press, it is presumed that you know the definition of the word expunged.

    As a reader of that sentence, I question lawyer Gregg M. Sidoti’s familiarity with standard English.

    1. ??What?! This must be one of those fake Kirkland accounts. [snark] New York is the Empire State, so New York lawyer letters have the force of imperial decrees in the lesser provinces like Oklahoma. Respect your betters, backwater clingers. [/snark] There, fixed.

      1. There are some smart, decent, educated people in Oklahoma. Not nearly enough, though, to offset the others. There are officious, subliterate jerks in New York. Too many.

        There are important and telling distinctions between New York and Oklahoma, however, just as there are between a New York Yankees and a San Diego Padres, a Stevie Wonder and a Kenny G, a BMW and a Chevrolet, a Harvard and an Ouachita Baptist, or a board-certified surgeon and a faith healer.

        1. Or between the Right Reverend Kirkland and a sane person.

          1. All defenses of Kenny G are referred to Pat Metheny for handling.

  10. “Guide yourself accordingly.”

    Why do lawyers write like this?

    1. Good ones don’t.

    2. I understand that’s standard practice in Texas (and I’m assuming Oklahoma too). I thought it was odd the first time I saw it.

      For them, it’s like closing a letter with “sincerely” or “very truly yours.”

      1. I’m a lawyer in Texas, and I’ve never seen that phrase. Maybe it’s a phrase specific to demand letters, which is not part of my practice.

        1. Maybe. I’m in the Bold North, and on the rare occasion I’ve seen it in practice, it’s been in a demand letter (or similar opening salvo) from somewhere in the mid-south.

        2. I’m a lawyer in Texas (36 years.). I’ve seen and written many demand letters. I only know one lawyer who does this and he moved here from Ne Jersey.

          1. Andrew Karl Rozell, Harlingen, Texas. Your admission is reported in the January, 1983 Issue of the Texas Bar Journal. Did you go to Austin for the swearing in ceremony? Did you like my speech? That is my picture on Page 79 of the January, 1983 TBJ. I was foolish enough to get the high score on the Texas Bar Exam. What a waste.

      2. I’m a lawyer in Texas and I’ve never seen it.

      3. I’ve seen it, or a variation of it, a number of times from plaintiffs’ counsel in various jurisdictions. Those who employ it are invariably blusterous hacks.

  11. In a tangential issue, for security clearances, people have to list certain arrests, convictions, etc, even if the case were sealed or expunged, or the charges dropped.

    With clearances, the government cares far more about what you actually did (or didn’t do) than whatever consequences you ultimately incurred.

    “The government’s argument in these matters is that someone who escaped more severe consequences on a technicality, by taking a plea deal, or by simply ignoring a creditor or being well-behaved at work long enough to evade paying the piper, isn’t automatically worthy of trust. In other words, a decision by a third party to impose lesser-than-maximum punishment or cease pursuing a remedy is often one of efficiency ? for example, conserving judicial resources ? not a determination of character that would inform a decision about your reliability, judgment, or integrity.”

  12. This is an example of the Streisand Effect. More people have seen his name as a result of the order than would otherwise have seen it.

    The charges were filed in the District Court of Payne County Oklahoma, which dismissed the case and all charges and issued the expungement order, clearly specifying the records of the sheriff’s office, state bureau of investigation, and court clerk.

    The 27 Jan 2017 expungement order is signed off by the county sheriff, a state investigator, and a Stillwater OK attorney for the charged.

    I would like to know what made Gregg M. Sidoti, Counselor at Law, Thornwood NY, think 3 Nov 2017 he could apply the expungement order to the 5 May 2015 the newspaper article.

    I am curious because I Googled “reputation repair” include “sodoti” and got a lot of ads for “Repair Your Online Reputation”.

  13. Why do I have a feeling that despite the fact that it “never happened”, Gregg M. Sidoti did not refund his fees in defending the matter that “never happened.”

  14. Some people read 1984 and thought ‘memory hole? … cool!’

  15. It would be nice if the article indicated whether the expunction was based on innocence or because the kid was a first offender and deserved a break.

    If based on innocence, the article should go ahead and say so.

    I notice in the link (after prof. V corrected it), that this seems to be the only case with follow-up information.

    The media really ought to provide follow-up information in *all* cases – convicted? Acquitted? Dismissed? Pled out?

    1. The Oklahoma statute referenced by the order ( 22-18 para. 8) authorizes expungement when:

      The person was charged with a misdemeanor, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, the person has never been convicted of a felony, no misdemeanor or felony charges are pending against the person, and at least one (1) year has passed since the charge was dismissed;

      1. “the charge was dismissed following the successful completion of a deferred judgment or delayed sentence”

        This would seem to suggest that expungement does *not* apply to acquittals or dismissals based on innocence.

        1. Not this expungement, no, but the fact that I quoted paragraph 8 should suggest there are at least 7 other paragraphs.

          1. OK, it covers acquittal, DNA exonerations, pardons based on innocence.

            1. Which beings me back to my point…they should at least mention that it was expunged based on such-and-such a legal provision, based on no felony record, no pending charges, finishing a deferred sentence etc. at least a year ago…

              I mean, they could be specific about being charged with public drunkenness, as opposed to “arrested for a crime.”

              1. Again, I suspect that for all the other arrests in that story, there are follow-ups the paper can do, like were they convicted, did they get some kind of plea, etc., but so far it’s like a cop press release.

  16. This is a little off topic, but I’ve always wondered about the effect of an expungement being that you can swear that the expunged event never happened. Suppose I was arrested, charged, either tried or pled guilty, sentenced to probation, and then pardoned by a kind-hearted governor who thought I’d been railroaded. The whole matter was then expunged per the applicable statute. I understand that the statute says that I can swear I was never arrested, etc. But can I do so morally? Leave aside the federal security clearance situation or any other questionnaire that instructs you to reveal expunged matters. In a routine situation covered by the expungement statute, is it morally OK to swear that I never was arrested when in fact I was and I know that I was? And if the employer or whoever later discovers that I had been arrested although I swore that I hadn’t, wouldn’t he/she have a reasonable basis for questioning my integrity?

  17. Never trust a guy who spells, “Gregg”, with two “g”s

    1. Not to mention that Sidoti is an anagram for idiots.

      1. FTW!

    2. Doesn’t he spell it with three “g”s?

  18. If expungement meant that all printed references should disappear, then the expungement order itself would have to disappear. The whole argument disappears up its own back side. 🙂

    I wonder if any lawyer has tried to apply the right to be forgotten on The Internet Archive

    How would you sue someone for defamation if all copies of the defamatory article disappeared before trial? The complaint itself would have to include a copy of the defamatory statements.

    I’m just trying to point out a few of the many absurdities about altering history.

    1. Actually, that’s related to one problem with the way expungements are handled in some places: Because the case at that point is entirely hidden, someone who gets a copy of an expungement (e.g., a newspaper editor) and wants to check whether it’s authentic can’t do that. And people ought to check: I’ve found 75 forged court orders so far in my research, including some expungements or expungement-like orders, so I’ve realized that checking is necessary — but in many places, it’s also not possible, at least through standard procedures.

    2. I always advise people to keep a copy of their expunction order because the agencies will destroy everything they have, including their copy of the order. That includes the District Clerk with the official copy. So the only way to prove later that the case was expunged was by your own copy…but as EV says, how can anyone later be sure that’s actually official? I much prefer nondisclosures (sealing the records) to expunctions.

  19. On the one hand: the subject may want to have the history suppressed to protect his reputation.

    On the other hand: numerous arrests are information; not confirmed information, but still useful to others contemplating some association with the subject.

    On yet another hand: arrests are at the discretion of law enforcement, and could be ginned up without actual cause to create the appearance of criminality.

    On a hand after that: a false arrest or conviction might be evidence of malfeasance by law enforcement, which they would like suppressed, and the subject regards as a badge of honor, or constitutes an important part of the historical record.

  20. I’ve been looking for a way to get rid of my mugshots until i got introduced to this hacker that eventually helped me out.I was hesitant initially because i had already lost a lot of money to these removal companies who just extort people and never get the job done but this guy blew my mind,he was able to delete the mugshots and also remove some other negative online contents that i needed to get rid of..You can reach him at for any ethical/unethical related service that might require..

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