No ‘right to be forgotten’ even if record is expunged: 2nd Circuit

January 28, 2015

If you ask the state of Connecticut, Lorraine Martin was never arrested in August 2010 on narcotics charges. Yes, the arrest took place – Martin was charged along with her two adult sons after police searched her home in Greenwich and found marijuana, scales and plastic bags – but in January 2012 the state dropped its case and scrubbed Martin’s record. Under Connecticut’s erasure statute, which is similar to those in other states, Martin is permitted to swear under oath that she has never been arrested.

That is small consolation to her, according to Martin’s lawyer, Ryan O’Neill of the Law Offices of Mark Sherman. The Internet still tells anyone who is interested that Lorraine Martin was arrested in Connecticut in 2010 on drug charges. Prospective employers certainly checked, according to O’Neill. For at least two years after the state dropped its case and expunged the records, he said, Martin wasn’t able to find work as a nurse because of old news stories about the arrest. (He told me Wednesday that he doesn’t know if she has a job now; in a 2013 column for the New York Times, Bill Keller detailed some of the other fallout for Martin from the arrest and lingering news accounts of it.)

After her record was expunged, Martin asked news organizations to take down the articles. Hearst and News 12 Interactive refused, arguing that they had accurately reported the fact of Martin’s arrest. In Europe, Martin could have asked Internet search operators to disable links to information about the nullified drug charges. U.S. law doesn’t recognize a “right to be forgotten,” however. So in July 2012, Martin sued Hearst and News 12 in federal court in New Haven, Connecticut, for libel, invasion of privacy and infliction of emotional harm. The news stories they refused to change or delete, her lawyers said, may have been accurate at the time of her arrest. But once the state erased her record, they argued, stories of her arrest were false and defamatory.

On Wednesday, the 2nd U.S. Court of Appeals sided with the news organizations and upheld the dismissal of Martin’s case. The erasure of Martin’s record, wrote Judge Richard Wesley for a panel that also included Judges John Walker and Dennis Jacobs, does not change historical truth, however much she might wish otherwise. “The Moving Finger has moved on,” Wesley wrote, paraphrasing Omar Khayyam. The opinion also cited previous rulings in which state courts in New Jersey, Oregon and Massachusetts held that expungement statutes don’t change history, merely what former defendants are permitted to say about the past.

The 2nd Circuit acknowledged that it is possible for news outfits to report truthfully but still be liable for defamation for omitting key facts. (The classic example is a 1978 case, Memphis Publishing v. Nichols, in which a newspaper falsely implied through selective reporting that an enraged woman shot at her husband and another woman after finding them together at her house. What the newspaper didn’t say is that the husband and other woman were fully clothed and sitting with a group of people in the living room of the house where shots were fired.) But according to the appeals court, the accounts of Martin’s arrest “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.”

The ruling, said News 12 lawyer David Schulz of Levine Sullivan Koch & Schulz, reflects the primacy of free speech in the United States, where privacy is not a constitutional right. UCLA law professor Eugene Volokh, who filed an amicus brief at the 2nd Circuit on behalf of the Reporters Committee for Freedom of the Press (and has blogged about the Martin case at the Volokh Conspiracy blog), said that even in California, which includes a right to privacy in its state constitution, precedent from the 2004 state Supreme Court case Gates v. Discovery Communications favors the principle that if someone’s criminal past is a matter of public record, news organizations are entitled to report on it.

Neither Schulz nor Volokh expect the 2nd Circuit’s decision in the Martin case to be the last time that the Internet’s long memory inspires a First Amendment challenge on privacy grounds. Volokh mentioned proposed legislation in Alabama, for instance, that would make websites liable if they failed to take down mug shots of defendants who were acquitted or otherwise exonerated.

Martin counsel O’Neill said she is considering an appeal to the U.S. Supreme Court. He said Martin should be entitled to ask a jury whether the erasure of her record makes accounts of her arrest “materially misleading.”

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