Is It Libel to Say Someone Was Arrested When the Arrest Record Has Been Erased?

As I noted last year, the New Jersey Supreme Court rejected a similar claim as to convictions (paragraph break added):

G.D. [argues] that the record of his conviction [for possession with intent to distribute cocaine] was expunged [some years later] 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.

But in Connecticut, a new lawsuit (Martin v. Hearst Corp. (Conn. Super. Ct. filed June 11, 2012)) is making much the same claim as was made in New Jersey, except as to arrest records. According to the Complaint, a Hearst publication stated, on Aug. 26, 2010, that plaintiff Lorraine Martin had been “arrested and charged with numerous drug violations Aug. 20 after police received information that a pair of brothers were selling marijuana in town,” and other defendant publishers made similar statements. But, Martin argues, “[s]ince January 11, 2012, DEFENDANTS’ respective online publications of the [statements] were, and continue to be, false and defamatory.” Why false? Apparently on the grounds that state law provides for arrest records to be erased under certain conditions, such that “Any person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”

Moreover, Martin argues, the case should be certified as a class action on behalf of people whose names defendants have published “in the police blotters and/or news sections of their respective online versions of their print newspapers as having been arrested, when in fact they are not deemed to have been arrested.” The plaintiff’s theory appears to be that, whenever anyone has an arrest record erased, the newspapers have to remove the statement about the arrest from their online archives. And this theory would cover anyone covered by the erasure statute, which applies not only to people who were found not guilty but also to people who participated in a court-administered diversionary program in which successful completion meant the charges would be dropped, and potentially to other dismissals as well.

But I think this theory is mistaken, for the same reason given by the New Jersey Supreme Court. A government may choose to ignore certain past arrests for its own purposes. It may choose not to disclose such arrests to others. It may even authorize people to lie under oath about those arrests (I set aside in this post the question whether that is a sound idea). But the First Amendment protects other people’s rights to talk about arrests that had — as a matter of historical fact — actually happened. A statute can’t rewrite history, and force others to pretend that something didn’t happen when in fact it did happen.

Now, as I mentioned in a different post, it’s possible that a publisher must correct any factual inaccuracies in its online archives, if those inaccuracies come to light after an article is posted. But there is nothing inaccurate about an article’s continuing to report on an arrest that had in fact happened. At most the article would have to be updated to note that the charges have been dropped, in order to prevent “libel by omission,” on the theory that the facts given produced a “clear inference” that was incorrect, and that extra facts would have cleared up. (See also this case, which was cited by the Connecticut libel by omission case that I linked to above.)

But at least one of the complained-about articles has been updated to so note (though I’m not sure exactly when). Moreover, the class allegations aren’t limited to people as to whom the story never noted the dropping of the charges — the class would include even those for whom the story quite completely reports that the person was arrested and the charges were later dropped.

Even if the charges were later dropped and no update was added to the story, I’m not certain that the story would constitute libel by omission; the law on that question is fuzzy. And if the charges were dropped because of a plea bargain or a diversionary program, rather than because of a conclusion that the arrestee wasn’t guilty (again, the class allegations are broad enough to cover these situations), I think the newspapers’ case would be especially strong even in the absence of an update about the dropping of the charges: The implication from the report of the arrest, which is that there’s good reason to think the arrestee may be guilty, would remain accurate. (I asked Ms. Martin’s lawyer exactly why the charges against her specifically were dropped, but he said he couldn’t comment on the case; in any case, many class members would have had the charges against them dropped for reasons other than their innocence.)

But in any event, it seems to me that publishing an update is the most that the newspaper could be legally obligated to do, even when it learns that the charges were dropped because the police concluded the arrestee was innocent. To the extent that this lawsuit argues the contrary, and demands a deletion of the accurate report of the arrest, I think the First Amendment firmly bars any such claim.