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Capitolbeat Takes a Stand for the “Greater Good”

June 28, 2010

Sometimes taking a stand for the First Amendment means you have to align yourself with some pretty unlikeable people.  The most recent amicus brief Capitolbeat has joined provides the perfect illustration of that statement.    The case, before the Supreme Court of New Jersey, is officially titled G.D. v. Bernard Kenny and the Hudson County Democratic Organization, Inc.  But the brief drafted by attorneys for the New Jersey Press Association and also joined by Capitolbeat, Advance Publications, Inc., the Associated Press, the ACLU of New Jersey, and  the American Society of News Editors steers clear of the facts of the particular case in favor of addressing the larger implications of overturning the appellate court’s decision.

The facts of the case are somewhat disturbing. During the 2007 New Jersey State Senate campaign, defendants mailed 17,000 fliers to more than 8,000 households in the state. These fliers  stated that the plaintiff, formerly a part time aide to one of the opposition candidates, was formerly a drug dealer who spent 5 years in jail for selling cocaine near a public school. 

In fact, the plaintiff was arrested in 1990 at age 18 and pled guilty for possession of a controlled substance with intent to distribute.  But there was no evidence he actually sold any drugs, there was no proximity to a public school and he did not spend 5 years in jail.  In fact, the arrest record was expunged in 2006.  Plaintiff sued for defamation, infliction of emotional distress, invasion of privacy and conspiracy.   Defendants, predictably, moved to dismiss the claims and moved for summary judgment in their favor.  The trial court dismissed both motions because discovery would be required to resolve the highly factual issues about the truth of the allegations and whether the plaintiff’s privacy rights were violated.  The appellate court reversed, holding that the expungment of the arrest record did not render the allegations substantially and materially untrue, nor did they give rise to an invasion of privacy or intentional infliction of emotional distress claim.

The plaintiff took the case to the New Jersey Supreme Court, where he made three main arguments:

  1. An expunged criminal history cannot prove the “truth” of otherwise  defamatory communications without violating the NJ expungment statute
  2. An  expunged criminal record is not a “matter of public record” that precludes causes of action for the privacy torts of false light, publication of private facts and invasion of privacy
  3. An individual has a reasonable expectation of privacy in facts that are found in expunged criminal records

There was 100 percent agreement among the Board that the defendants who created and distributed these fliers were really not all that likeable. There was also uncertainty about the overtly political genesis of the case itself.  But all recognized the greater issues in play and agreed that the danger to journalism merited Capitolbeat’s participation; the board simply needed to be sure that the brief concentrated on those dangers to journalism, rather than the parties to this particular case.

In the end, the brief did just that.  You can read it in its entirety here, where you’ll see that our main arguments were

  1. Expunging a record doesn’t erase the act giving rise to the criminal charges; it simply relieves the criminal from any further liability deriving from the existence of a criminal record. So writing that a criminal act once occurred must still be writing the truth and, thus, prevents any liability for defamation.   As the brief notes, courts – from the Supreme Court on down – have always held that publication of lawfully obtained truthful information cannot give rise to an invasion of privacy lawsuit (and, of course, truth is a defense to a defamation case).   There is a strong recitation of lower court and state court cases from around the country which support this proposition with regard to news reporting, with the conclusion that only the custodian who illegally released the record being liable for punishment.
  2. The expunged criminal record is still a “public record” that precludes any invasion of privacy lawsuit.  While plaintiffs may claim a privacy right in the expunged criminal record, it is still a government record.  The government’s removal of any further criminal liability based on those actions should not and cannot be read as the government’s endorsement that the person is entitled to no further public discussion of his or her crime. Nor, again, does it change the fact that the person once actually committed a crime (in other words, it’s not a reversal of the original conviction). 
  3. There can be no expectation of privacy in expunged records.  Again, the act itself still occurred.  Though there may be no criminal impact remaining and the government may not invoke the act against the criminal in the past, it has not simply disappeared.  This is especially true in the digital age, where a repository of information about the person and his or her actions is likely archived anywhere – and there’s nothing we can ever do to change that (in fact, to say that the expungment means a newspaper cannot discuss the criminal act might also be read to say that all references to the criminal act must be deleted from archives). 

We hope you agree that these issues (though perhaps not these facts) could be repeated in your state and that Capitolbeat’s participation is essential to providing reporters with the breathing room they need to publish all information available to them in such a controversial situation.   Feel free to let us know what you think.

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