Second Circuit: No Erasing History to Make Facts a Falsehood Posted on March 11, 2015 by Eleanor Smith Once-true facts cannot be converted into falsehoods supporting a defamation suit, the Second Circuit ruled on January 28, 2015, in the case of a woman who wanted news reports about her deleted. The claim had been dismissed by a federal judge in August, 2013, but it drew much attention, including a mention in the New York Times and the submission of an amicus brief from a First Amendment advocacy group. A clean slate The plaintiff, Lorraine Martin of Greenwich, Connecticut, is a nurse. She was arrested in 2010, along with her two adult sons, on drug charges. Police raided her home and found a small amount of marijuana, scales and plastic baggies. The charges against Martin were dismissed after she agreed to take drug awareness classes, and her understanding was that her record had been automatically purged. The law at issue is Connecticut’s Records Criminal Erasure Statute. The legislative intent of the law is to erase stigma by legally deeming those individuals who are later pardoned or vindicated to never have been arrested. The law, which wipes out arrest records, giving people “a clean slate,” is a typical expungement law. Most states have some version of erasure or expungement laws. The Connecticut statute provides that any person whose record is erased “shall be deemed to never have been arrested.” The statute further provides that individuals to whom the statute applies may swear that they have never been arrested, even under oath. Arrest reports still online Martin Googled herself after being denied several jobs she believed to be well within her reach and was devastated by what she discovered. Multiple stories discussing her arrest in 2010 were still sitting in news archives, with headlines such as “Mother and Sons Charged with Drug Offenses.” When she realized her would-be employers were probably turning her down after “doing their research,” she filed a class action defamation suit against several local media outlets. Defamation is defined as the publication of information that is damaging and false. Martin hoped to establish through her case that the Connecticut erasure law made the definition of truth mutable, despite the fact that the news stories about Martin were true when they were written. Martin’s attorney argued Martin was deemed to have never been arrested under the Connecticut law, so the old news stories were effectively transformed into a falsehood. Right out of George Orwell The briefs and arguments submitted during the case’s lifespan call to one’s mind the writing of both authors George Orwell and Lewis Carroll. The New Jersey Supreme Court, which dismissed Martin’s case, referred to the overall argument as “Orwellian,” an adjective used to describe the societal condition identified by Orwell as being destructive to the welfare of a free and open society. Bill Keller, a writer for the New York Times, described the arguments surrounding the case as follows: “There are passages in the court briefs that make you think the lawyers were possessed by the ghost of Lewis Carroll. They debate the difference between “historical fact” and “legal fact.” They dispute whether something that was true when it happened can become not just private but actually untrue, so untrue you can swear an oath that it never happened and, in the eyes of the law, you’ll be telling the truth. Several pages and copious footnotes are devoted to considering what the meaning of “publish” is. Martin’s lawyers insist that every time a search engine delivers the old story to a new reader, it amounts to republishing, and constitutes a new libel. The defending news companies say that is ridiculous.” Retroactively defamable The named defendant news corporation in Martin’s suit was Hearst Corp., the well-known American multinational media group located in New York City’s Midtown Manhattan Hearst Tower. Denying that online news reports could become retroactively defamable, Hearst argued that the statements were accurate at the time of their publication. In turn, Martin asked that the articles, which she viewed as false and misleading, be pulled from the World Wide Web entirely. Martin’s attorney, Mark Sherman, conceded in the plaintiff’s brief that the suit is rather “novel,” but argued nevertheless that this is the modern-day equivalent of a scarlet letter. “She’s become unemployable in spite of the fact that she has no criminal arrest record,” Sherman said, testing the proposition that, “in America in the Internet age, there are benign, even humane reasons that sometimes history should be erased.” When Martin appealed her case to the Second Circuit, it replied: “The statute creates legal fictions, but it does not and cannot undo historical facts or convert once-true facts into falsehoods . . . The [Connecticut expungement law] does not render historically accurate news accounts of an arrest tortious merely because the defendant is later deemed as a matter of legal fiction never to have been arrested . . . The few enumerated exceptions to the erasure requirements and the statute’s text confirm that the Legislature contemplated erasure only in the context of the judicial and law enforcement systems.” Hits to old news content Ryan O’Neill, Martin’s additional counsel, also a member of Mark Sherman Law, LLC, on her most recent appeal to the Second Circuit, said he respectfully disagreed with the case’s outcome. O’Neill said, “We are no longer in the days of large newspaper archives where stories go to die . . . If online news publications are going to reap the benefits of ‘hits’ to old news content, they ought to be responsible for updating or removing content they know to be inaccurate.” O’Neill argued that keeping the old, currently inaccurate news articles online was the equivalent of keeping them on news stands, reasoning that it is unfair for the news outlets to continue gaining revenue from the stories. Second Circuit Judges Dennis Jacobs, Richard Wesley and John Walker disagreed, based on the central finding that the Connecticut erasure statute only erases an arrest history in certain circumstances, like in a subsequent criminal case brought by the government. “It cannot mean the event never actually happened,” the panel concluded. Anxious backlash The issues raised by the existence of the First Amendment clearly weighed against Martin. But Bill Keller, who wrote about Martin for The New York Times in 2013, urged that the dilemma underlying Martin’s case is “very real, and not so simple”: “The Connecticut case is just one manifestation of an anxious backlash against the invasive power of the Internet, a world of Big Data and ever more powerful search engines, in which it seems almost everything is permanently recorded and accessible to almost anyone — potential employers, landlords, dates, predators. In Europe, where press freedoms are less sacred and the right to privacy is more ensconced, the idea has taken hold that individuals have a “right to be forgotten” and those who want their online particulars expunged tend to have the government on their side. In Germany or Spain, Lorraine Martin might have [had] a winning case.” According to Keller, the practice of most newspapers, including the New York Times, is to edit, or amend, older articles once an updated piece of information is received. The common practice throughout the United States, however, is that the article, even after it has been updated, stands. One thing has certainly been proven through Lorraine Martin’s efforts: bringing a law suit to make something go away might have just the opposite effect. The case is Martin v. Hearst Corp. et al., case number 13-3315, in the U.S. Court of Appeals for the Second Circuit.