Reports on Expunged Arrest Can’t Be Erased From the Internet–Martin v. Hearst

We don’t have a “right to be forgotten” here in the United States, so plaintiffs are experimenting with doctrinal workarounds to achieve the same outcomes. As today’s case illustrates, those workarounds are destined to fail.

Lorraine Martin was arrested in 2010 on drug charges. In 2011, the prosecutor “nolled” her case, meaning that all charges were dropped without prejudice to refiling them. Under the applicable Connecticut law, nolling her charges created the legal fiction that she had never been arrested, and the official government records of her arrest and prosecution were expunged/erased. Based on this legal fiction, Martin approached several media outlets that had covered her initial arrest, said the expungement meant their reports were now false, and asked them to take down the reports from the Internet. When the media outlets denied her request, Martin sued them for express and implied defamation (and more).

The court says Martin misapprehends the legal fiction of erasing her arrest records (emphasis added):

the Erasure Statute requires the state to erase certain official records of an arrest and grants the defendant the legal status of one who has not been arrested. But the Erasure Statute’s effects end there. The statute creates legal fictions, but it does not and cannot undo historical facts or convert once true facts into falsehoods.

The court says there’s no express defamation:

the reports of her arrest were true at the time they were published. Neither the Erasure Statute nor any amount of wishing can undo that historical truth.

The court also rejects any implied defamation based on a theory that the prior media coverage is now incomplete:

The news reports at issue in this case, however, 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. Reasonable readers understand that some people who are arrested are guilty and that others are not. Reasonable readers also know that in some cases individuals who are arrested will eventually have charges against them dropped. Reporting Martin’s arrest without an update may not be as complete a story as Martin would like, but it implies nothing false about her.

As a result, Martin cannot do anything to erase the media coverage of her now-expunged arrest.

Despite the so-called right to be forgotten, this result may not be different than what would happen in Europe. My understanding is that newspapers don’t have to remove publications about arrests either. But this case also highlights how US and European law diverge; the Second Circuit’s reasoning applies with equal vigor to all other republishers of the original coverage, including by extension any search engines indexing such coverage. So Martin can’t force Google to de-index the media coverage about her. In contrast, European law would treat search engines differently than all other content publishers and force them to remove content that other publishers can publish. This highlights the search engine exceptionalism in the right to be forgotten–which I think is illogical and indefensible.

But what about Lorraine Martin? We know that simply being arrested can create significant social stigma, and the prosecutor’s nolling suggests that perhaps the arrest was wrong in the first place, which would make Martin a victim of overreaching law enforcement. Shouldn’t she get a clean slate?

While that line of thinking is tempting, focusing only on Martin’s personal situation is incomplete. Her arrest didn’t affect just her. It was a community-wide event with community-wide consequences. At minimum, we need to be able to track all “nolled” cases so we can monitor our criminal justice system. If prosecutors are routinely nolling cases, that might indicate law enforcement is routinely making overreaching arrests; or that prosecutors are improperly cherry-picking cases; or [pick your favorite conspiratorial fear about the misapplication of government authority.] If all reports about the arrest become newly defamatory once the case gets nolled, we lose the ability to monitor our own government’s behavior.

This highlights one of the main reasons why I think the right to be forgotten is so deeply misguided. It’s an attempt to pretend that history didn’t happen. However, we cannot understand or appreciate who we are and what we’re doing without knowing how we got here.

One final thought: the opinion doesn’t discuss the First Amendment at all. Instead, it turns solely on the limited scope of the Connecticut Erasure Statute. However, if Connecticut or anyone else tried to extend that erasure law to cover third party publishers, the law would unquestionably violate the First Amendment.

Case citation: Martin v. Hearst Corporation, 13-3315 (2d Cir. Jan. 28, 2015)