Law Office of Tim Powers
Legally Speaking: Can we pretend that never happened?
October 8, 2012 3:22 PM
John G. Browning
Most states, including Texas, have laws allowing for the expungement of
criminal convictions under certain circumstances. Under this procedure,
it has the legal effect of what we used to call a "do-over"
on the playground; it's as if the conviction never happened.
So, job applicants with a criminal conviction that's been expunged
from their records can legitimately answer "no" to a question
inquiring about criminal convictions, safe in the assumption that their
records have been wiped of any such offense.
But what if someone who knows about such a conviction talks about it or
publishes something about it? Can they be sued for defamation by the person
who received the expungement, and who understandably doesn't want
the public to know about something that—in the eyes of the criminal
justice system, at least—never happened?
That's a question that a number of courts have recently been asked
to answer. In
Martin v. Hearst Corp., a case filed in June 2012 in a Connecticut state court, the plaintiff
Lorraine Martin is suing several newspaper publishers because their online
publications contain mentions of the plaintiff being arrested and charged
with drug violations on Aug. 20, 2010.
Is this defamatory because Martin
wasn't arrested? No; Martin concedes that the original Aug. 26, 2010, newspaper
report of the drug charges was accurate. However, she says the arrest
record (for reasons that aren't clear) has since been erased, yet
in the world of cyberspace, the arrest and any report of it lives on.
The plaintiff says these online versions of the original story are "false
and defamatory"—not because the arrest didn't happen, but
because Connecticut's state erasure (or expungement) law provides
that a person who was the subject of charges that were erased "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
In fact, Martin's lawsuit seeks certification as a class action lawsuit
on behalf of anyone who's had an arrest erased but whose arrest still
lives on in the online archives of a media outlet.
But can a newspaper or an individual be guilty of libel for telling what
may, admittedly, be an unpleasant truth? An expungement or erasure statute
can't rewrite history, nor can it make someone pretend that something
didn't happen. The actual event—in Martin's case, an arrest—is
a historical fact, albeit one she might care to forget.
At best, a newspaper might want to avoid a "libel by omission"
by making sure to update stories that appear online with additional information,
such as the fact that the charges were dropped or that the arrest has
been "erased" from someone's records.
Last year, the New Jersey Supreme Court considered a similar case, where
the plaintiff argued that the record of his drug conviction was expunged
and therefore his conviction is deemed, as a matter of law, not to have
occurred. As a result, the plaintiff claimed, disseminating the information
that he was convicted of a crime violated his privacy rights.
The New Jersey Supreme Court rejected the plaintiff's claims. Although
the court acknowledged that the expungement statute had the legal effect
of making it as if a conviction had never occurred, it doesn't transform
a once-true fact into a lie.
The court noted that the statute "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 does not alter the metaphysical truth of his past, nor does it impose
a regime of silence on those who know the truth."
No one knows ultimately how the Connecticut litigation will turn out, but
it's likely that if common sense prevails, the result will be similar
to New Jersey's ruling.
But, over in Europe, it might be a different story, since not only is there
no First Amendment, but also because Europeans are rapidly warming to
the notion of a so-called "right to be forgotten." Under this
doctrine, anyone who has personal data about them retained shall have
the right to object to such retention.
Essentially, if older (but still accurate, although embarrassing) news
stories about someone are out there, they would have the ability to have
such digital dirty laundry removed. Of course, Europe is well-known for
having more stringent data privacy laws than the U.S.
Should the law permit the equivalent of the kind of convenient "memory
wipe" that we see in movies like "Men in Black," or the
ability to, in effect, change the past, as in time travel movies like
Should it allow someone to use legal channels to deny a historical fact,
no matter how inconvenient that truth might be for someone trying to distance
himself from his past?
Our First Amendment would certainly protect someone who decides to speak
about what was—and still is—the truth.
If you are seeking aggressive criminal representation by an experienced
criminal defense attorney for your Denton County criminal case or arrest
in Denton County, contact the offices of Tim Powers today. There is no
charge or obligation for the initial consultation. 940.580.2899.
*Tim Powers is an attorney licensed to practice law by the Supreme Court
of Texas. Nothing in this article is intended to be legal advice. For
legal advice about any specific legal question you should directly consult