In a post about a fairly pedestrian New Jersey case in which the Supreme Court held that a statute creating a private cause of action for disorderly conduct for the offense of revealing an expunged arrest against a local paper that refused to remove a published report when, months later, the arrest was expunged, Eugene Volokh concludes with a quite stunning proposition.
I should add that I think that there’s some room in libel law for requirements that a site on which an arrest report is posted should also report that the arrestee was exonerated, if the site is informed of that, or else face liability for reporting what is now a half-truth. (See this article and this one.) But even if courts were to accept that libel theory, that can’t justify a statute such as New Jersey’s, which purports to categorically forbids revealing the existing of an expunged arrest even when the publication reports on the expungement as well.
Can a “truth” be turned into a “half truth” after the fact? Does it create a duty, after the fact, to revisit the publication to correct, modify, alter what was written to reflect what happened subsequently?
It’s one thing to write about an arrest or conviction where the arrest has already been expunged or the conviction reversed, as they are material elements of the fact at the time it was written. To omit a material element, and thereby create a deliberately false impression, is one thing. But this involves a change that occurs after the fact. Is it libelous not to change the substance of a prior publication to include something that did not exist at the time of the writing and only came about well afterward?
If someone is arrested, the arrest itself is a fact. It happened. A police officer seized a person and, most of the time, brought them before a magistrate to be arraigned. Subsequent expungement creates a legal fiction that a physical fact, such as slapping on the cuffs, never happened. But that’s a fiction grounded in law, not a fact grounded in reality. The cop pinched the dude, slapped on the cuffs, and hauled him off to court. That was just as real as the pain and humiliation of your neighbors watching you get taken away in the back of a cruiser or the pain of having too-tight cuffs on your wrists. But the law, in its wisdom, allows defendants and compels the government to believe otherwise by expungement. Fair enough.
But when a publication, whether it be the New York Times, the Red Bank Green or Simple Justice, posts a story about the arrest, it does so at the time that the fact exists, and that’s all that exists. Granted, an arrest is of little legal significance, as the defendant is presumed innocent and has yet to be considered by a neutral magistrate to decide whether there is probable cause, but the ride still happened.
Should the ride unhappen months, maybe years, later because of an expungement? States are enacting second chance laws that enable a defendant to have a conviction expunged so that they aren’t saddled with ancient convictions if they’ve changed their evil ways and led a law-abiding life. This is a great thing, long past due given the bias against anyone with a criminal conviction that haunts them for the rest of their lives. But what of a publication written decades earlier, accurate and truthful at the time, which remains published and stands in conflict with the legal fiction of expungement?
The people whose names appear here write me with some regularity asking me to remove old posts about them. Some ask nicely. Some give very strong reasons to take down harmful old posts that do harm far beyond their informational benefit. Some make threats and demands. I try to be accommodating to those with good reasons or persuasive arguments. I’m less accommodating to those who think they can threaten me into submission.
But would Eugene have me exposed to libel for leaving up or not “correcting” a post that was fully truthful and accurate at the time published, and for the next decade, but later turned into a “half truth” by a subsequent occurrence such as expungement? It would appear so.
In contrast to Eugene’s position, a truth, as he calls it, does not become a half-truth because of a subsequent occurrence. It is every bit as true today as the day it was written, the only difference being that later occurrences gave rise to additional information that, if it was to be written about again, would be material in order to be factually accurate.
But for the government, by way of allowing a libel action, to compel me to go back in time, change wholly accurate facts to include post-hoc material information, seems to facially violate the First Amendment by compelling speech to modify a wholly truthful statement because something changed later. I may choose to do so. I may not. But it is not libelous if it was truthful at the time it was published no matter what happens later.
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What Eugene’s proposing looks like a limited version of the continuous publication rule, which in broader terms has been rejected in the US. I think it has some merit.
In the Old Days (call them Good or Bad at your preference), something like this would be printed in a newspaper, which would be immutable once printed, read by some number of people around the time of its publication, and then largely forgotten. Sure, it would still exist–in archives of the publisher, in some well-stocked libraries, and a few other places–but it would be largely out of the public eye. A dedicated researcher could find it, but they’re relatively few and far between.
Today, with the Internet and search engines, these things aren’t forgotten. If I type “Mortimer W. Clanketybritches” into Google, I’m going to find your (hypothetical, naturally) post from ten years ago where you talked about all the heinous crimes he was charged with. If you become aware that those charges were dropped, or he was acquitted, or whatever, you’re going to say so, because you’re an honorable person–you don’t need the threat of liability to push you to do this. But, of course, not everyone is honorable.
So, Eugene proposes to establish a duty, when (or if) you learn of expungement/exoneration/reversal/etc., to update a post/article to reflect that fact. He avoids, IMO, the two things that would be unduly burdensome, in that (1) he would not impose an affirmative (and continuous) duty to check up on Mortimer, to see if the charges had been dropped; and (2) he would not require removing the original post/article, but only a reference to the exoneration/acquittal/dismissal/expungement/whatever. The first would obviously impose a significant burden; the second would require you to do what you’re concerned about: remove entirely accurate facts. But as stated, it seems to balance the interests reasonably well.
Hmm. Let’s say you produce a bunch of t-shirts with “[photo of convicted murderer] [name of convicted murderer] is a murderer!”. True at the time you produce and start to sell them. Later, however, [convicted murderer] is fully exonerated, not just not guilty, some other person convicted and turns out original [convicted murderer] had an alibi. They now-innocent person contacts you, provides you all the info about now being not guilt, tells you to stop selling the t-shirts. And no giving them away for free either!
Can you still sell (or give away) those t-shirts without running afoul of libel law? If not, how different is a newspaper website that charges a subscription to access old content as well as new, leaving the [convicted murderer] story up without an update when specifically alerted to it? If a free blog/website, is that analogous to giving the t-shirts away for free instead of selling them, once you’ve been informed?
Or, thinking of analogy to exerting editorial control, if a website regularly chooses to change and update stories, is selectively deciding not to problematic?
I’m not aware of any US jurisdiction where it matters whether you’re making money for your defamatory speech–perhaps it’s a factor in damages, but definitely not on the question of liability AFAIK. With that said…
If you continue to distribute the shirts, knowing that the message is false (or with reckless disregard to its truth or falsity, as would at minimum be the case in your example)? Yes, absolutely, you should be liable for defamation; I think that much is clear under existing law (and I think much of the “Karen Read is a killer” stuff is now at least approaching that point, though I guess that’s a bit of a tangent). If you’re actively distributing that message, existing law will hold you liable.
The newspaper website you propose is distinguished by the fact that the information’s just there; you’re taking no active part in its continuing to be there. It’s presumably on that basis that the US has largely rejected the continuous publication rule–you’re deemed to have published it once, when you initially posted it, and its defamatory character or lack thereof is judged as of that time. It’s this that Eugene proposes to change, and I continue to believe his proposal has merit. Because the fact is, even if you aren’t actively involved, you’re continuing to distribute this message.
There’s probably some hammering out of details that needs to happen, but I think he’s got a point here.
You sell the murderer t-shirts through your website. Once told the person is proven innocent, conviction expunged, etc., you stop selling the shirts – but they’re still shown on your website saying “sold out”, but people can still see the photo and statement. Response of t-shirt vendor to demands “the information’s just there, I’m taking no active part in its continuing to be there, I’m not selling the t-shirts but out website is also a repository of information of what we have sold in the past.”
Well, by maintaining website and listings, aren’t you actively making it continue to be there, just like a newspaper website is choosing to make old stories continue to be available on their site. It’s not like physical copies which you discuss, once they’re out there the original publisher has no control.
Eugene is talking out of his ass. If he thinks that people have a “duty” to update old posts with mitigating information, that’s fine, and he is welcome to think less of anyone who doesn’t do that, but any law that tried to enforce it would constitute forced speech.
Hi. Free lesson. The word “duty” is a technical term in the law. The scare quotes demonstrate that you aren’t a lawyer and have nothing whatsoever to add.
If you click the links then you will understand my point. He is conflating a moral duty with the legal term.
If. Your point was clear and stupid and wrong in the context of Volokh speaking of duties as a lawyer does. He’s not writing for you, and for good reason, apparently.
I don’t appreciate you allowing people to call me stupid and then trashing my reply.
[Ed. Note: Then don’t double down on stupid crap.]
Calling someone stupid should be reserved for cases where someone is actually being stupid. This was not such a case. You may disagree with my analysis of Eugene’s article and you may think that my quotes from his article don’t indicate what I think they do, but calling me stupid because I make a point that you disagree with is just an ad hominem attack, and someone who is subjected to an ad hominem attack should be able to respond.
[Ed. Note: An ad hominem is “you are stupid, therefore anything you say it stupid.” An ad hominem attack is not “what you say is stupid, therefore you are stupid.” This has been a public service announcement.]
Having been wrongly arrested by a citizen, I think the miracle of modern technology compels a modern answer that’s devoted to the truth. A publisher who can find the time and resources about an arrest should be compelled to finish the story.
There is no difference between ommitting an acquittal/expungement and refusing to append an update (much as one would a correction) to reflect same.
“A publisher who can find the time and resources about an arrest should be compelled to finish the story….”
No matter how you slice it, “compelling” speech is a problem.
However, this is (or, perhaps, was) a common practice in newsrooms in the “old days.” Newspapers kept an in-house archive of everything they published (old-timers called it “the morgue.”) Stories were often filed under multiple subjects to ensure they could be found when needed. When there were developments in the various stories, librarians would go back and append notes to the original stories so that a reporter who checked out the file would not print outdated information. But those archives were strictly internal. When newspaper archives started being made available to the public (for a fee, of course) it got muddled, because the external archives were almost always curated by a third-party (for example, Lexis-Nexis), and the daily feed to the vendor might not have the updated info in it. Now throw in each newspaper’s online presence, and it becomes even more complicated — and error-prone. I just don’t think it’s practical.
It seems likely the New Jersey law was not intended to be applied to news archives, but to the data broker services that are making arrest and conviction records available to their paid subscribers. If those businesses freely ignore acquittals and expungements to provide subscribers data on expunged arrests, the purpose of the expungement statutes will be defeated. On the Internet, there simply is no “clean slate.” Maybe New Jersey thought they could do this by analogy to federal credit reporting rules, but it raises both first amendment and commerce clause/jurisdictional problems. As some other states have tried to do in certain other respects, New Jersey is trying to rule the Worldwide Web from its legislative chambers, and is applying its regimen to publication of matters that are factually true. It may be well-intentioned, but it’s a ball of worms.
[Ed. Note: You probably meant to leave this comment for Eugene over at VC, since it has absolutely nothing to do with my post.]
Eugene is right. That is how libel laws are intended to work. Publications that deliberately publish false defamatory information should be liable for harm to injured parties. This is not the 20th century where newspapers get discarded in the trash or filed in the morgue. Publication on the internet is continuous and potentially forever. The harm to individuals who lose jobs or careers due to inaccurate arrest reports is great enough to impose liability on publishers for damages arising from false defamatory information published on their websites.
How is it possible that you miss every nuance of every post that gives rise to the issue raised? Are you reading this on some other planet?
Once again an aside in one of your posts reminds me of the shit you constantly have to deal with to keep this blog running. Also again, I am reminded it’s been awhile since I tipped you. I will now be remedying this situation.
I think the problem is the assumption that arrest = guilt. And the solution is not compelled speech. Unfortunately I don’t know what the solution is, or how you get there.
Also, the sky is blue and birds go tweet.