Mass. Trial Court Rejects Right to Be Forgotten

"The Commonwealth's statute governing expunged records does not govern what the press may or may not choose to publish," and the First Amendment in any event protects such publication.

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From G.W. v. Gannett Co., Inc., decided Dec. 29 by Judge Rosemary Connolly (Mass. Super. Ct.), but just posted on Westlaw:

The Defendant, a media entity, asks the court to dismiss the Plaintiff's complaint because it contends that G.W. has stated no plausible legal claim when he/she asks the Defendant to remove the cyber traces of two truthfully reported articles originally published in 2013. Plaintiff contends that two separate police blotter entries in 2013 published in the Defendant's publications identify him as having been arrested and criminally charged by two local police departments on two unrelated misdemeanors.

The Plaintiff states that he/she was never prosecuted on those charges. Those matters were expunged or sealed on Plaintiff's criminal record. However, the police blotter reports linger, at least in the cyber world. Plaintiff does not dispute the accuracy of those reports at the time that they were reported.

Plaintiff now, demands that the Defendant remove the narrative portion of the police blotter in its reports. This is because, he argues, a simple Google search by a prospective employer can uncover this history, and it is a history that is statutorily prohibited from being divulged to that same employer if they requested a Criminal Activity Report (CARI) before making Plaintiff an employment offer.

In other words, as long as a search engine can find the links to the reports, then an internet search can do an end run around the legislative protections intended for G.W., especially as it relates to his/her sealed and expunged criminal records. Plaintiff wants the court to order the Defendant to remove the narrative and links on the webpages with these police blotter reports….

The court is not unsympathetic to Plaintiff's wish to reset the narrative about past events nor is the court unconcerned about the potential collateral damage the old reports could have on Plaintiff's employment, housing or credit prospects. However, the Plaintiff's claim for relief must give way to the First Amendment of the United States Constitution. Full stop.

Not surprisingly the Plaintiff cannot site any case or law to support Plaintiff's rather overbroad, overreaching remedy. In contrast the Defendant cites an unassailable series of precedents to demonstrate the legal basis for its motion to dismiss. For example, Defendant notes that its police blotter reports are protected by the fair credit reporting privilege [probably should just be "fair report privilege" -EV] which protects published reports of arrest by police. Yohe v. Nugent (1st Cir. 2003); Jones v. Taibbi  (1987).

The Commonwealth's statute governing expunged records does not govern what the press may or may not choose to publish. See M.G.L. 258D §7. This is not a case of defamation. The report from the police blotter was factually accurate when reported. Subsequent events may have made them less relevant, but nonetheless they were truthful. As the law cited by the Defendant reveals, the Supreme Court has afforded the press a wide, unfettered berth, when it publishes truthful information.

Not only is the law contrary to Plaintiff's position but as a matter of public policy, Plaintiff's position is on shakier grounds. What could add more fuel to the calls of "fake news" or serve to undermine fact driven debates if erasing, modifying or white washing historical and factual events and statements was required when current events or sensibilities made the past truth, inconvenient or uncomfortable?

It was the late Senator from New York, Daniel Patrick Moynihan who said "[e]veryone is entitled to his own opinion but not to his own facts." Now as ever, public discourse must be fueled by common verifiable facts. The press, as the fourth estate, is relied upon to report facts, hopefully not to create or recreate them to make them more palatable for public consumption….

{G.W. filed this suit using their initials to protect their identity and privacy in this lawsuit which has at its core Plaintiff's desire to be forgotten and remain anonymous. Despite that impulse the Plaintiff has included links to the alleged offending articles and other information from which the Plaintiff's identity could be ascertained which simply underscores the futility of trying to erase historical data once it is electronically stored, especially when the cyber links to the information are such stubborn and enduring things.}

Note that what seems to be one of the stories indicates that the charges against G.W. ("driving after suspension, refusing to identify himself and defective equipment [a lights violation]") were dismissed: "On July 15, 2013, The offenses of driving after suspension and failure to identify were dismissed upon request of the commonwealth prior to arraignment. Wilson was found not responsible for the lights violation." The other story, which reports that G.W. was "charged … with a second offense of operating under the influence of alcohol" doesn't indicate that the charges were dropped.

I think that it would sometimes be permissible for state law to treat as libelous (1) the continued display of the initial charges (2) without an update indicating that the charges were dropped; and it would be permissible for state law to extend the statute of limitations for such situations. But here the lawsuit was for invasion of privacy, not for libel; and in any event the statute of limitations on that has long since run.

NEXT: Today in Supreme Court History: April 13, 1896

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  1. “I think that it would sometimes be permissible for state law to treat as libelous (1) the continued display of the initial charges. . . .”

    Prof. Volokh,

    Are you saying it would be the duty/responsibility of every media outlet to update every story every time there’s a change in a legal situation (e.g. the charges were dropped)?

    Or should the media make the changes only upon request?

    And who would be the authorized requestor?

    Would a daughter be able to make the request for her deceased mother?

    1. 1. Only upon being informed when there was such a legally significant change (e.g., dropped charges, a reversed conviction, etc.), see here for more.

      2. The basis of this theory is that keeping up a story reporting on the charges but not on the charges being dropped is a libel. But one can’t be liable for defaming the dead, so this wouldn’t apply when the charged person is now dead.

      1. I think you’re also assuming digital media. If it related to newspaper printed on paper, I don’t think you expect them to retrieve those old copies and use white-out on them.

        1. Of course, my theory is limited to editable digital media, as was G.W.’s lawsuit.

          1. Some newspaper web sites actually have provisions for removal of names from their digital police report articles — or at least an email for those wishing to do so to contact them at.

          2. So if a publisher does something to make their archives un-editable, then their obligation disappears.

            Let’s say they put photos of the pages online, just like NYT does.

            It doesn’t sound wise to make legal obligations so closely tied to technology in a world where technology changes so rapidly.

      2. Seems quite burdensome on speech. Would the rule apply just to periodical-type media, or more permanent forms of writing, like e-books, law-review articles, etc?

  2. When was the lawsuit filed? The note about the prosecutor dropping charges was added between July, 2013 and April, 2014.

    Second offense DUI is not supposed to be made to go away but a well-connected lawyer can probably do it. The Boston Globe ran a series complaining about the low conviction rate in bench trials for DUI. More recently we had a problem with improperly calibrated breath test machines that could have resulted in a lot of evidence being tossed.

    (The legislature “fixed” a low conviction rate for sex offender commitment trials by allowing the prosecutor to demand a jury trial. They did not do the same for DUI because sometimes drunk politicians run across an honest cop and need to have the case fixed.)

  3. In today’s ironic episode, I call fake news on the judge’s last name. Her name is Judge Connolly, not Gonnolly. Maybe that was an OCR mistake by Westlaw—I note her signature goes right through part of the ‘C’—in turn compounded by uncritical copy paste? (Could this case thus be referred to as “Going, Going, Gonnolly”?)

    1. Thanks for letting me know — fixed. (And yes, the “Gonnolly” appears in the Westlaw version, and I incorrectly relied on it.)

      1. Happy to do it. Thanks for posting on this important case. I’ll be curious to see if and when further proceedings occur on appeal.

  4. Suppose you are mistakenly arrested and booked. Then the police magistrate discover the error and you are let go. Minor harm (one night in the pokey) no foul, right?

    Then you discover numerous job opportunities that were once open to you are now shut off. Even offers that were already made die off when you follow up on them. The reason: most all employers and their agencies do network records search on all employee candidates. Anyone who has a “record” is automatically shuffled to the bottom of the pile if not stacked with the “reject” category. They have more candidates than they need so why not? And it is all automated these days chances are the resume will never be seen by a person.

    They will treat an arrest pretty much the same as a conviction. I would say that is real harm done.

    1. I agree, particularly in Massachusetts with the CORI law which makes it damn near impossible to find out about convictions — and what people fail to realize is that without access to that data, any arrest is presumed to be a conviction.

      I don’t know the solution, but it is a problem.

    2. Massachusetts was one of the first on the “ban the box” bandwagon in 2010. It’s illegal to ask about an arrest (MGL 151B-9). It may be legal to find out about it by other means, and then it would be illegal to ask for an explanation.

      Some people think ban the box backfired because people who look like they might be criminals can not prove their innocence.

  5. I am struck by the odd use of pronouns in the article.

    In a couple of cases in the judges ruling G. W. is referred to as “he/she” and “him/her” (possibly from the complaint?).

    In other quotes apparently from the arrest record or original report G.W. is referred to as “he” and “himself”.

    The judge also seems to have referred to G. W. as “their” in a couple more.

  6. The flip side of this is that Massachusetts has a law which apparently makes it a criminal offense for *anyone* to name a rape victim — or the name of one who is fabricating a rape which never occurred. Even when the name of the hoaxer is very much in the public interest.

    It was 20 years ago, but a fellow UM student, who had been my neighbor and hence I knew personally — sliced her face with a knife and then ran, blood streaming, across the campus to an anti-rape rally falsely alleging that she had been attacked by a non-existent White male — the phantom rapist.

    She was widely known to both police & fire as she had twice attempted to commit suicide on campus with a knife (that I knew of) and it was immediately known that this was a hoax because the fire (EMTs) treating her injuries and the police investigating the crime shared notes and realized that they’d gotten two completely different stories.

    Well, her attorney proceeded to threaten the spinless university with a lawsuit if it didn’t proclaim that she had been attacked. And when that came out, I wanted to print her name.

    And was told that I would go to jail if I did…

    1. You may have been told that by the same people who would now tell you HIPAA makes it illegal to discuss somebody else’s health. In 1989 the Supreme Court said laws banning publication of names of victims of sex crimes violated the First Amendment. _Florida Star v. B.J.F._

    2. Look, Dr. Ed fabricated yet another anecdote!

    3. The flip side of this is that Massachusetts has a law which apparently makes it a criminal offense for *anyone* to name a rape victim — or the name of one who is fabricating a rape which never occurred. Even when the name of the hoaxer is very much in the public interest.

      No, it doesn’t, you peabrained fabulist.

    4. “The flip side of this is that Massachusetts has a law which apparently makes it a criminal offense for *anyone* to name a rape victim…”

      That law, Ch 265 Sec 24C, doesn’t carry jail time, and since the incident was about 10 years after Florida Star, I imagine it was unenforceable. But I wouldn’t be surprised if college students were being given inaccurate information about the law.

      1. Not just college students — the off-campus newspapers also had her name and one went so far to go with a Sunshine Act (FIOA) request for the name, knowing that if they could get it from the state, they could quote the state.

  7. “It was the late Senator from New York, Daniel Patrick Moynihan who said “everyone is entitled to his own opinion but not to his own facts.”

    Here a few of the Senator’s facts:
    (This is from so long ago I lost the citation. I think an early “earth day”)

    Adviser Daniel Patrick Moynihan, notable as a Democrat in the administration, urged the administration to initiate a worldwide system of monitoring carbon dioxide in the atmosphere, decades before the issue of global warming came to the public’s attention.
    There is widespread agreement that carbon dioxide content will rise 25 percent by 2000, Moynihan wrote in a September 1969 memo.
    “This could increase the average temperature near the earth’s surface by 7 degrees Fahrenheit,” he wrote. “This in turn could raise the level of the sea by 10 feet. Goodbye New York. Goodbye Washington, for that matter.”

    Sadly, Washington DC and New York are both still with us, and pretty dry.

    1. The greenhouse gas theory of planetary warming has been around since at least the 1930’s.

      1. The theory that greenhouses gases keep Earth habitable is old. The idea of CO2-driven global warming wasn’t fashionable until the 1980s or 1990s, though. If you average Moynihan’s imminent catastrophe with the nearly contemporary fears of a coming ice age, maybe you land where scientists are today.

  8. Did a court actually write “the Plaintiff cannot *site* any case or law…”?

  9. “…the Plaintiff cannot site any case or law…”

    It really does say “site” in the original PDF.

    1. Good grief. That kind of error means I’ll begin reading her opinion with a working assumption that she’s an idiot. Sure, she may be able to overcome that assumption with the cogency of her legal reasoning, but why start off with one strike against you?

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