The Volokh Conspiracy
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N.J. Criminal Prosecution of News Reporters for Not Removing Post About Expunged Arrest
From the Motion to Dismiss in State v. Katzgrau, written by Bruce Rosen (Pashman Stein Walder Hayden, P.C.); the analysis seems to me quite correct, and the G.D. v. Kenny decision from the New Jersey Supreme Court strikes me as dispositive:
This case involves a media entity's alleged violation of N.J.S.A. 2C:52-30, which makes it a disorderly persons offense to knowingly reveal the existence of an expunged arrest. The arrest in question was published in the Red Bank Police Department's monthly police blotter report and then republished on the Red Bank Green local news website. Several months after the publication, the arrest was expunged.
The U.S. Supreme Court has stated numerous times that publication of truthful information on matters of public significance cannot be punished unless it involves a state interest of the highest order. But even more significantly, the New Jersey Supreme Court has specifically explained that the media and private citizens cannot be prosecuted under N.J.S.A. 2C:52-30, even if they knowingly disclose or discuss an expunged arrest, because doing so would be a blatant violation of their federal and state constitutional rights of free speech.
Moreover, information concerning the arrest was published prior to the expungement, and there is no requirement in law that it be removed from the publisher's website simply because an expungement had taken place. But that is exactly what the Complainant alleges in his Certification in Support of Probable Cause when he stated: "I have provided Red Bank Green with dismissal/expungement paperwork multiple times and they refuse to remove the content from their website directly violating NJ 2C:52-30." This is also the basis upon which this Court erroneously determined there was probable cause.
To the extent that defendants are somehow being charged with not removing the police blotter entry after the expungement, our Supreme Court and numerous other courts have opined as to the blatant unconstitutionality of such a requirement. If anything, Red Bank Green should be commended for, after being informed of the expungement, adding a note explaining that the arrest had been expunged. It had no legal obligation to do so, but did so in accordance with its own policies and desire to report fairly and accurately to the public….
Red Bank Green is a local news website whose editor is defendant Brian Donohue and whose publisher is defendant Kenneth Katzgrau. As a service to the community, Red Bank Green publishes what is commonly called a "police blotter," a monthly crime and arrest report compiled by the Red Bank Police Department and published as part of the Red Bank Community Bulletin Police on a monthly basis ("the police blotter"), which includes information concerning crimes and arrests.
Complainant Kyle Pietila was arrested for simple assault on August 31, 2024 in Red Bank. The arrest was included in the police blotter sent to various publications and the community by the Red Bank Police Department. The final entry in this particular lengthy police blotter reads: "Kyle Pietila, age 40 of Red Bank was arrested on 8/31/2024 in the area of Reckless Place for Simple Assault by Ptl. Grace Maggiulli."
The police blotter was received by Red Bank Green on September 18, 2024 via email directly from William Morrison at the Records Bureau of the Red Bank Police and was published the same day. Mr. Pietila's case was subsequently dismissed by the Court months later, on March 27, 2025, and simultaneously expunged by this Court pursuant to an expedited expungement as per N.J.S.A. 2C:52-6. Shortly thereafter, Mr. Pietila and his attorney separately contacted Mr. Donohue and repeatedly requested that the entry in the September 18 police blotter be removed and in the process provided Mr. Donohue with the Expungement Order and Certificate of Disposition.
Mr. Donohue refused to take down the truthful information it had already published, and informed them that Red Bank Green's policy is as set forth on its website … as follows:
We strongly believe that once information is published, it should stay published as-is unless a correction or clarification is warranted.
We do not remove or materially alter stories or images once they have been published.
We do not withhold or edit information in police blotters before or after they are published. If you have been acquitted or pleaded to a lesser charge after an arrest and would like our archive to reflect this, please send us the court record and we will gladly update the original story.
Following continued requests by Mr. Pietila and his attorney throughout May 2025, and in line with Red Bank Green's policies, Mr. Donohue added an editor's note to the exact same police blotter entry from September 18, 2024 as follows …
NOTE: The following arrest was expunged on March 27, 2025 by Municipal Court Judge Frank LaRocca under an order determining the arrest "shall be deemed to have not occurred." Kyle Pietila, age 40 of Red Bank was arrested on 08/31/2024 in the area of Reckless Pl. for Simple Assault by Ptl. Grace Maggiulli.
Mr. Pietila continued to insist that the entry be taken down and Mr. Donohue attempted to explain to him via email and on the telephone that Red Bank Green was not required by law to take down factual published information and it was instead Red Bank Green's policy to post an explanatory note with the new information. On June 4, 2025, in a brief telephone conversation, Mr. Pietila's last words to Mr. Donohue were to repeat his home address and asked if he lived there and then asked him: "how much money do you have?" Mr. Donohue then ended the call.
Mr. Pietila thereafter filed a citizen's complaint …, which this Court on June 26th ruled had probable cause to proceed. Mr. Katzgrau had nothing to do with the interactions with Mr. Pietila….
The basic principle that the government may not prevent truthful reporting on matters of public significance, based on lawfully obtained material, absent a state interest of the highest order, has been developed and reaffirmed in a series of U.S. Supreme Court cases over the last half century known as the "Daily Mail" principle, named after Smith v. Daily Mail Pub. Co. (1979). See, e.g., Fla. Star v. B.J.F. (1989) (government has other ways to protect the privacy and safety of rape victims without punishing publication of information provided by the government); Cox Broad. Corp. v. Cohn (1975) (journalists cannot be punished for reporting the name of rape victims, despite a Georgia law meant to protect the privacy of rape victims, where the government places information in the public domain); Neb. Press Ass'n v. Stuart (1976) (an order prohibiting the press from publishing certain information they came to learn during an open public hearing "plainly violated settled principles."); Okla. Publ'g Co. v. Dist. Ct. in and for Okla. Cnty. (1977) (a newspaper that photographed a juvenile defendant when allowed into a hearing without a court order could not be punished despite a state statute providing juvenile proceedings were closed); Daily Mail (setting forth a test for when government can punish publication of lawfully obtained, truthful information about a matter of public significance, in a case about the identity of juvenile offenders); Bartnicki v. Vopper (2001) (the media could not be punished for playing an illegally recorded conversation where they were not responsible for the illegal recordation despite the governmental interest in preventing surreptitious recording of conversations).
N.J.S.A. 2C:52-30 states in relevant part that "any person who reveals to another the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged or sealed is a disorderly person." In G.D. v. Kenny (N.J. 2011), the New Jersey Supreme Court weighed a similar issue as in the Daily Mail cases and came to the same conclusion. In a Hudson County political campaign, a primary candidate had created campaign flyers containing information about the arrest and guilty plea of his opponent's aide on drug charges 15 years earlier. The aide, G.D., had entered a pretrial intervention program and his arrest was subsequently expunged. The aide argued that because the record of his conviction was expunged that therefore, his conviction—as a matter of law—was deemed not to have occurred, he had been defamed and his privacy rights had been violated. The Supreme Court disagreed, stating that "Although our expungement statute relieves a prior offender of some civil disabilities, it does not extinguish the truth."
The Court noted that the expungement statute was not without exceptions, and that a court order of expungement does not result in the destruction of criminal records or erasure of the truth. Rather, the records described in the expungement order must be removed from the files of any government agency that is given notice of the expungement petition in accordance with N.J.S.A. 2C:52–15 and "[i]n response to requests for information or records" regarding the conviction, the agency is required to respond that "there is no record information."
The Court made it clear that one cannot edit history through the expungement statute and that its strictures bind only government agencies and officials from disclosing information about expunged arrests or convictions:
[N]o one has argued that a newspaper that has reported on the arrest or conviction of a person whose record is later expunged must excise from its archives a past story or, similarly, that the New Jersey judiciary must razor from the bound volumes of its reporters a published case. Common sense tells us that an arrest or conviction may become general knowledge within a community and that people will not banish from their memories stored knowledge even if they become aware of an expungement order.
The Court then addressed the statute head on:
The most extreme reading of N.J.S.A. 2C:52–30 would criminalize truthful speech on matters of public interest and concern. Although those employed in certain statutorily named government agencies that have custody of expunged records are clearly bound by N.J.S.A. 2C:52–30, a literal and overly broad reading of that statute likely would violate free-speech rights guaranteed under the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution.
The Court then went through the Daily Mail line of cases and determined that although the statute was susceptible of two possible meanings—one constitutional and one not—the Court was enjoined by its canons of statutory interpretation and by prudence to choose the one that is constitutional.
We cannot conceive that the Legislature intended to punish, under our Criminal Code, persons who have spoken truthfully about lawfully acquired information long contained in public records, even if they know of the existence of an expungement order. We cannot conclude that N.J.S.A. 2C:52–30 transforms political debate between neighbors and friends and discourse on matters of public interest into disorderly conduct, just because the subject of the discussion is contained in a record known to be expunged.
The Court's explanation of why N.J.S.A. 2C:52–30 cannot be applied to these defendants is infinitely clear. The statute cannot be used to punish the publication of truthful information by ordinary citizens or the media, particularly information that was provided by the government. Moreover, under our Supreme Court's rubric, the information published by Red Bank Green is protected under the fair report privilege as it is an accurate report of the actions of government, necessarily setting up an additional First Amendment defense to this prosecution. Salzano v. N. Jersey Media Group. (N.J. 2008).
Finally, this entire prosecution is defective as it is based on a disclosure of an arrest that pre-existed any expungement order by many months. Defendants are not charged with publicizing an expungement order (as there is no such offense), and since the information was published on September 18, 2024 and expunged on March 27, 2025, the Court in declaring probable cause can only be concluding that the statute requires the taking down of the original information after an expungement. This is exactly what Mr. Pietila alleges in his Certifications in Support of Probable Cause ("I have provided Red Bank Green with dismissal/expungement paperwork multiple times and they refuse to remove the content from their website directly violating NJ 2C:52-30"). There is no legal basis for such a theory and this Court should never have granted probable cause for it. Indeed the G.D. court said as much:
It is true that under the expungement statute, as a matter of law, an expunged conviction is "deemed not to have occurred," N.J.S.A. 2C:52–27. But the expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archivesof newspapers, bound volumes of reported decisions or a personal diary. It cannot banish memories. 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.
As a general matter, news organizations do not have a duty to retract, remove, or update previously-published true stories based on subsequent developments. Martin v. Hearst Corp. (2d Cir. 2015) (noting that later-occurring developments "cannot undo historical facts or convert once-true facts into falsehoods"); Rogatkin v. Raleigh Am., Inc. (D. Mass. 2014) ("The publication of true but historical facts (even if outdated) about a person cannot be defamatory as a matter of law."); Pacheco Quevedo v. Hearst Corp. (Conn. Super. Ct. 2019) ("[T]he law of defamation does not impose a duty to update news coverage with later developments."). Moreover, imposing such an obligation on a news organization would violate the news station's First Amendment rights to freedom of speech. See, Miami Herald Pub. Co. v. Tornillo (1974) ("It has yet to be demonstrated how governmental regulation of [editorial control and judgment] can be exercised consistent with First Amendment guarantees of a free press ….")….
Note that New Jersey law lets private citizens initiate a criminal prosecution, though a judge then decides whether there's probable cause. Apparently this is what happened here: Mr. Pietila filed the criminal complaint, and the judge (wrongly) founded probable cause, so the prosecutor contracted by the county is now pressing the charges. Cf. How I Was a Criminal Defendant in a N.J. Harassment Case.
I should add that I think that there's some room in libel law for requirements that a site on which an arrest report is posted should also report that the arrestee was exonerated, if the site is informed of that, or else face liability for reporting what is now a half-truth. (See this article and this one.) But even if courts were to accept that libel theory, that can't justify a statute such as New Jersey's, which purports to categorically forbids revealing the existing of an expunged arrest even when the publication reports on the expungement as well.
