A trial court in New Jersey said it could be, but the New Jersey Supreme Court has said no:
During a primary contest for State Senate, opponents of candidate Brian Stack issued campaign flyers criticizing him for previously hiring a person with a criminal conviction, plaintiff G.D. One campaign flyer stated that G.D. was “a DRUG DEALER who went to JAIL for FIVE YEARS for selling coke near a public school.” G.D. filed a lawsuit alleging defamation, violation of privacy, and other related torts, and named as defendants the Hudson County Democratic Organization and certain individuals, as the purported authors and distributors of the flyers. Defendants assert truth as a defense. G.D. had been convicted of second-degree possession with intent to distribute cocaine and sentenced to a five-year prison term. Thirteen years later, he successfully petitioned for the expungement of his criminal record. Defendants reason that G.D.’s conviction was a public fact maintained as a public record long before the expungement and that the publication of that fact during a political campaign was a legitimate exercise of their free-speech rights and did not violate G.D.’s reasonable expectation of privacy.
G.D. counters that the record of his conviction was expunged and, therefore, his conviction — as a matter of law — is deemed not to have occurred. G.D. submits that, after the expungement of his record, the pronouncement that he was
convicted of a crime was simply false and the dissemination of the expunged information violated his privacy rights....
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 archives of newspapers or 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.
Sounds exactly right to me. I’m also pleased that the New Jersey Supreme Court rejected the argument — also made in an amicus brief by the Electronic Privacy Information Center — that publicizing people’s now-expunged criminal convictions is tortious under the “disclosure of private facts” tort. “This case,” the court reasoned, “deals with public acts, a guilty plea and sentence in a public courtroom, and public facts, court records available to the public over many years. We hold that the expungement order did not and could not create a reasonable expectation of privacy in matters so long in the public domain.”
I blogged a year ago about the intermediate appellate court’s decision in this case.