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VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

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

The "right to be forgotten" comes to Texas.

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.)

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  • Scarecrow Repair & Chippering||

    Looks like you, Mr Volokh, just might be the sole remaining expert on this expunction. You need to initiate a canary approach: report this again every day. When it doesn't show up, we'll know what happened.

  • KenveeB||

    That's one of the major problems with expunction law -- it can be subject to massive abuses, but no one knows about it because no one involved can talk about it once the order is signed.

    You're right, though, that Texas expunction law doesn't cover including a newspaper or other media outlet in an expunction order. Expunctions in Texas are restricted solely to government agencies. The only private agencies that are included are ones that purchase criminal record information, the background check companies like Public Data. Expunction petitioners often includes private entities on orders -- newspapers, bail bondsmen, their defense attorney -- but a careful prosecutor and judge will make sure they're removed before the order is signed. Unfortunately, not everyone is careful. And in a large jurisdiction like Harris County, some things will slip through.

  • ThomasW||

    A mistake in an order like this could bring about some weird cases.

    Person is accused of a crime, retains attorney, etc. Close to the trial charges are dropped. Sloppy expunction order given which includes defense attorney, who obediently destroys exculpatory evidence. Then person is re-charged (no double jeopardy as not tried yet) and defense attorney is sued for destroying evidence.

  • KenveeB||

    Actually, in your scenario, the person couldn't be recharged. If a case is indicted and then dismissed, the person could only get an expunction if the statute of limitations runs, meaning no new trial. (Or in a very difficult to obtain expunction that means there was a mistake that vitiated probable cause -- like fake dope or a "witness" lying to set someone up -- and chances of retrial would be pretty much nil.)

    Who is going to be suing the defense attorney? The defendant? He's the one who requested the expunction AND put the defense attorney's name on it. The State isn't the one writing the orders. He can't get a court order for someone to do something and then complain that they did it.

  • Dadlobby||

    Kudos to TX. New York State exempts DV allegations from being expunged from the central records data base. So mere allegations sit in perpetuity, to be used by police to determine if you are a "primary aggressor" every time you get in an argument with a girlfriend, spouse, or your kid and a neighbor dials them up. This is nothing less than government supported gynocentric relational violence which destroys peoples reputations who have committed no crime and done nothing wrong.

  • PublicNameNotInUse||

    Several questions, all serious inquiries and not rhetorical

    First, if the TV station were ordered to run that story again rather than expunging the archives, would that still be a First Amendment violation?

    Second, if yes then is ordering an internet provider to carry all 3rd party content, whether the provider wants to or not, a violation?

    Third, regardless of your answer to the second, is ordering an ISP to carry certain government-provided content a violation? I'd expect that any answer to #2 wouldn't change for #3, but I'm curious to see what people say.

  • Eugene Volokh||

    PublicNameNotInUse: That's an interesting and important question; the short answer is that (1) having to host material on one's property is treated as different from (2) having to include it in one's own coherent speech product. That may be right or wrong, but the cases so suggest, most significantly Turner Broadcasting v. FCC (5-to-4), which upheld requirements that cable operators carry certain numbers of local broadcast channels, as well as the unanimous Rumsfeld v. FAIR and PruneYard Shopping Center v. Robins.

  • Krayt||

    I'm fine with nothing short of knowledge of an imminent D-Day invasion being temporarily silenced. But that's so bad execution for supporting the enemy isn't out of the question. Mercifully these are few and far between.

    In Footfall, by Larry Niven & Jerry Pournelle

    ===Minor spoiler===
    Earth got its butt whooped, and years later is about to launch a secretly-built dreadnaught to fight back. One smarmy reporter sneaks into the base and finds out about it, and goes to make a phone call to make his career with the huge news.

    One mechanic (who might be played by Javier Bardem, or Mike from Breaking Bad) catches him at the last second, then offscreen "takes care of business".

  • Eddy||

    It's not that I trust the media, but that I don't like empowering the government to censor true information.

    In general, I think that for the media to put on a Web page that someone has been arrested, while failing to note subsequent developments in the case (like acquittal, dropping charges, expunction, etc.) is highly misleading.

    But that doesn't mean the media should have its stories deleted, simply that they should be expected to post updates on the same page on which the arrest is reported. Hopefully the updates should be as prominent as possible.

    Eg, "THIS ARTICLE HAS BEEN UPDATED TO REFLECT THAT THE COURT THREW OUT/EXPUNGED THE CASE," right on top in big bold letters.

  • Eddy||

    I'm also skeptical of the government's intentions in censoring information about its own activities.

    "We arrested you, but you're innocent? Don't worry, we'll make sure that the media is forced to delete any reference to that embarrassing little incident which nobody needs to know about."

  • Ted S.||

    And of course the police release pretty much everybody's mug shots but cops who get arrested.

  • Brian Kennedy||

    Why could you have not made your points without further disseminating the man's name?

    Even if (as you argue and as I'll assume here) he has no right that non-governmental actors be required not to publish the original information, it does not follow that republishing his name is a good idea.

    As far as we know, he may be entirely innocent of the original charge. I suppose he is to blame for his role in obtaining an expungement order, but the punishment doesn't fit that wrongdoing, and you don't name either the judge or the attorney who respectively issued and moved for the order and who would be more blameworthy (still assuming that you're right in viewing the obtaining of expungement orders as unconstitutional behavior).

  • Eugene Volokh||

    Brian Kennedy: I appreciate the question, but my sense is that normal (likely correct) media practice is to report on the who, what, where, when, how, and why of the matter, including names, unless there's a very strong reason not to. Here a person went to court to get a court order to expunge an article. It seems to me right to mention who did it, and to give more details about the underlying dispute.

    That makes the story more concrete for readers, and it makes it possible that some readers will e-mail me to say, "Oh, I know more about this particular case that helps explain the back story, and here it is ...." (The case was in the news in Houston, and some of our readers may have followed it.)

    This is especially so because the quoted story, and my post, expressly say the charges were dropped. I agree that people would prefer that the public not know they have ever been arrested, even when it's clear the charges were dropped, but I don't think that this calls for keeping their identities confidential.

    This having been said, I appreciate this can be a difficult question, and my approach might be mistaken -- and, even if I'm right that this is the normal approach in the media, perhaps the norm is mistaken. I'd love to hear what others have to say.

    I exclude the judge's name just because of the habit of talking about what "the court" did; but I can see why the name might be helpful here. (There is no lawyer who sought the order; Barone represented himself.)

  • James Pollock||

    "This is especially so because the quoted story, and my post, expressly say the charges were dropped."

    Respectfully, professor, that isn't enough. Particularly for an audience who is expected to have above-average knowledge of the legal system, "the charges were dropped" doesn't say much. Were the charges dropped because there was no evidence? Because there was evidence, but key pieces had to be suppressed due to Constitutional violations? Because the accused had sufficient "juice" to call in a favor? Depending on the answer to the question, I have substantially different understandings of why the charge was dropped, and, more importantly for the accused, on whether or not I believe he SHOULD HAVE BEEN charged. I don't assume that the fact that the charges were dropped means he didn't do it. So, if he didn't do it, reporting that he got arrested for it, but the charges were dropped later, is an accusation that he is guilty. How strong an accusation it is depends on other assumptions or facts not in evidence, but it IS an accusation, even if a fairly weak one, and even if the reporting sticks to facts. Even if it sticks to privileged facts, such as public documents.

  • DodgerBobH||

    i disagree that the level of factual detail you specify is always necessary or desireable. It would be nice to have, if available, but not necessary. In most cases, I would be satisfied just to know that what is in a story has been reported accurately and truthfully. If a reader is interested in more details, the reader is free to get them on his or her own. Especially, as you say, for an audience with above average knowledge of the legal system. We all understand that "charges were dropped" could mean a lot of things.

  • James Pollock||

    Let's put you into the story to improve your empathy.

    I'll be the reporter. You be you.

    Let's suppose that I report that the police are investigating claims that you attempted to pay for an opportunity to have sex with one or more horses at a local stable. It's true! Of course, it's also true that the police were investigating this because I caused an informant to report that they'd seen and heard you, and the cops sent a detective over to the stables, and it's true that the stable employees totally cleared you, correctly stating that neither you nor the informant had ever been there. I, uh, left those parts out of the story, simply reporting that you were under investigation, what for, and the fact that no charges had been filed at the time the story was published.

    I leave the story up for a year, and then add a sentence that there were still no charges.

    You got a problem with that? What I printed is facts. Not all the facts, but all facts. How about if someone else publishes the fact that you were once investigated for horse prostitution, correctly noted that no charges were filed, and left the judgment up to readers?

  • Eugene Volokh||

    James Pollock: Again, I appreciate your points, and I'd love to explain why charges were dropped -- but I can't, because the record has been expunged. Any documents that might elaborate on that are now inaccessible to me. In the absence of that, I have what appears to be accurate information in the KTRK article; if someone can point me to some documents that offer more details, including of course exculpatory details, I would be delighted to quote them.

  • Ken Arromdee||

    It's true that you don't have exculpatory information any more than you have information that proves guilt, but if you have neither of those, you shouldn't post his name--you should default to the option that doesn't punish him rather than the option which does. In the absence of a conviction, just saying that a named person has been accused of something is no better than posting a rumor. And you wouldn't say "well, 'this rumor exists' is information, and I don't have any other information, so I think I'll post that".

  • Eugene Volokh||

    Well, let me ask you this: Newspapers routinely publish reports about arrests and mention the names of arrestees, even though there's of course an "absence of a conviction," and all that has happened is that "a named person has been accused of something." Should they likewise not publish people's names in such contexts? What if the trial is in progress, but there's no conviction yet?

  • Brian Kennedy||

    To what extent had those norms developed before the never-forget, universal-search functionality of the Internet? If before, should we think about changing them? I don't want to go to an EU-style bureaucracy imposing a legalistic right-to-be-forgot, but perhaps some rethinking of norms is in order.

    Courts aren't in a great position to be casting stones. In a former life, I read/scanned tens of thousands of employment discrimination decisions. In many cases, information on comparators is disclosed. The employee argues that he was disciplined more harshly than A or that he should have been promoted instead of B. The court sets out the parties' contentions about how bad A's behavior was or how weak B's qualifications are. (One footnote I recall began something like: "Plaintiff's argument that the school district erred in promoting [name] because of the complaints parents made that he'd molested their children is irrelevant because . . . ." [wait, what?].) The comparators are not represented in these proceedings and in some cases may not even know that their somewhat dirty laundry -- comparators only occasionally come across as unflawed human beings in opinions -- will be fodder for Westlaw.

    On occasion, I did see the parties and court cooperate to assign pseudonyms to comparators, but that was maybe 1% of the cases. I get why it's not done. It's a lot of work, and the folks who'd have to do the work aren't representing or getting paid by the comparators.

  • MikeMpls||

    Keep digging. In December of 2007 he was involved in shooting a burglar, likely legal under Texas' "Castle Doctrine", It's entirely possible that he has been innocent 100% of the time, but there is still an overall picture that warrants being in the public view.

  • Eugene Volokh||

    I saw those stories, but I wasn't sure that it was the same person; did you confirm that? It ultimately didn't seem significant enough to track down, especially since the shooting sounded legit from the press accounts, but I'd be happy to hear more.

  • Alief Parent||

    Damon Barone vs. Alief Independent School District (AISD)
    Harris County Case #2017-25766
    Case Type: Discrimination

    #TrustButVerify

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