By Jack Greiner, published in the Cincinnati Enquirer Most states have some form of an expungement statute. Subject to whatever conditions the applicable law requires, the statutes allow people to have an arrest removed from their record.
And once that happens, the person can truthfully tell prospective employers or colleges their record is clean. So in that respect, the expungement statutes rewrite official history. But that begs the question – what about “unofficial” but accurate accounts of the arrest? Are they affected by the law?
The United States Court of Appeals for the Second Circuit recently answered that question with a resounding “no.” As a result, a Connecticut resident was not able to compel the Hearst Corporation to erase from its online archives reports of the person’s arrest.
A woman named Lorraine Martin was arrested on multiple drug offenses in 2010. Several local newspapers published accurate reports about the incident. In 2012, the court dismissed the charges against Martin and ordered her record “erased” under the Connecticut Records Erasure Statute.
After the records were erased, Martin requested the newspapers take the 2010 articles off their Web sites. The newspapers refused, and Martin filed libel and false light claims against them. Martin’s theory was, given the erasure, which essentially established that the arrest never happened, the continued reporting on the arrest was false. Call it retroactive libel if you will. But whatever you call it, the trial court wasn’t impressed. It granted summary judgment in favor of the newspapers, and Martin appealed.
On appeal, the Second Circuit agreed the after-the-fact erasure of Martin's arrest could not create any civil liability on the part of media outlets that accurately reported on the arrest at the time it happened. While the statute creates a legal fiction, it does not alter historical fact.
The Second Circuit also found it significant that while the statute erases the record legally, it does not require the state to physically erase the record of related proceedings. Those records may still be used, for example, in a subsequent perjury action. In addition, the police may retain identification records such as photographs and fingerprints related to the arrest.
While the Second Circuit focused on a specific statute, the larger implication is that in the United States, courts are not likely to recognize a “right to be forgotten.”
Last year, a European court made big news when it recognized such a right and forced search engines like Google to eliminate links to accurate, but dated reports of a person’s previous legal troubles. It’s unlikely that concept will be imported here.