Should an individual whose criminal record has been expunged have a cause of action for invasion of privacy, defamation or false light when a media outlet refuses to “unpublish” or correct the original report of her criminal charge? Outside of George Orwell’s world, can a fact that once existed be willed away by a court order, making the once-accurate report false, or “constructively false” and so give rise to a cause of action?
The impact of being swept into the vortex of the criminal justice system, even if as the result of only a minor charge, and even if that charge is dismissed, will ricochet throughout an individual’s life doing untold damage. As Michelle Alexander described it, the consequences might include being discriminated against in employment, housing, education or lending. This derails any hope of rehabilitation and contributes to recidivism. In a society that has embraced “frictionless” sharing, and instantaneous dissemination of even the most inconsequential information, employers, lenders, and even nosey neighbors can easily access a criminal charge through public records or through a lingering media report. Even when the record has been expunged, or the charges dismissed, or the individual pardoned, the information remains, if not in the official record, in a wide range of published accounts. Given what appears to be an era of increasing faith in mass criminalization, and reliance on the prison-industrial complex as offering solutions to perceived societal problems, is there any hope of minimizing the damaging collateral consequences of a brush with the law? Is there a chance for a second act in America?
This article addresses the problems faced by individuals who have been harmed by the continued availability of media reports of criminal records that have been expunged, and explores possible remedies.
First, I briefly survey representative state expungement statutes, demonstrating that even the most robust expungement protocols do not accomplish their goal because it is simply impossible to erase the record of an arrest, charge or conviction. Indeed, sometimes expungement does more harm than good by deluding the expungee into relying on the fact that the record has been erased, only to have it discovered by a prospective employer, lender or other third party who then concludes the expungee is both an ex con and a liar.
I then consider whether it is possible to prevent access to criminal records or to control publication of such information in the first instance. I conclude that this is impossible because of important and appropriate constitutional guarantees protecting the right to access and the right to publish information concerning matters of public interest, which criminal proceedings surely are.
If it is not possible to prevent access to and publication of the information, can tort causes of action provide remedies, and perhaps caution restraint on those who would publish criminal records? Again the answer is no. Privacy claims are precluded by the public interest in criminal proceedings. Defamation and false light claims are foreclosed because the potential plaintiff cannot prove falsity. The Supreme Court would not condone undermining New York Times v. Sullivan by permitting the fiction of constructive falsity to meet this constitutionally required element. And because of the impact of the single publication rule, the notion of construing falsity from the effect of subsequent circumstances will not work. Falsity is the constitutional fulcrum for defamation and false light, and falsity cannot be proven.
Similar constitutional constraints foreclose the option of passing laws that would require media outlets to publish corrections or addendums explaining that the charges were dismissed or expunged or that the individual was pardoned. The Supreme Court has correctly concluded that government-forced speech violates the First Amendment.
Thus, the law offers no real solution, and this is as it should be. In light of this, I propose that media outlets adopt policies under which, in certain well-defined circumstances, they would voluntarily publish addendums explaining that the charge reported has been expunged or dismissed or the individual has been pardoned. Journalists do adhere to voluntary ethical guidelines. The modest policy I describe is based on guidelines already followed by some media outlets. It would be voluntary, and thus would not entangle the government in the editorial process. It would apply only to online outlets both because the ready availability of these reports make them the source of the greatest harm, and because the burden on an online outlet is minimal. Finally, this would be limited to verifiable expungements, dismissals or pardons, and so would not require independent investigation by the media outlets.
Criminal Law | Law
Date of this Version
Brogan, Doris DelTosto, "EXPUNGEMENT, DEFAMATION AND FALSE LIGHT: IS WHAT HAPPENED BEFORE WHAT REALLY HAPPENED OR IS THERE A CHANCE FOR A SECOND ACT IN AMERICA?" (2017). Working Paper Series. 192.