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.