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Home > Publications > Quill > Erasing the Record, One Story at a Time



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Tuesday, September 10, 2013
Erasing the Record, One Story at a Time

State erasure statutes are posing new challenges to news reporting in an age where everything lives forever online

By Genevieve Belmaker

In Connecticut, you can lie under oath about an arrest if your record has undergone what’s known as erasure. The little-known statute, which is different from the more well-known expungement laws, has actually been on the books there for decades.

But its potential implications have recently become more high-profile with a pending U.S. District Court case against a major media company.

The case, which pits Lorraine Martin against the Hearst Corp., argues that because Martin’s 2010 arrest was later erased from the record under the statute, she now has the right to demand that all media reports of the arrest also be erased.

Though journalism industry insiders, as well as legal and First Amendment experts, largely agree that Martin has little chance of success, the implications of her filing a case in the first place are chilling.

Erasure statues, which vary from state to state, allow people who were arrested, charged and dismissed of certain charges to have their record erased. When a case is dismissed under this law, it is as if it never happened to the extent that if asked in a court of law, those with erased records can legally say they were never arrested. Eligible cases include those with a “not guilty” verdict or where the case was dropped.

Though not new, the Internet has created an extra layer of complexity in following the spirit of the erasure law and its function to create the illusion that the arrest never took place at all.

In general, when a media outlet pushes the limits of what they publish in the name of public disclosure, the conversation on privacy and the public’s right to know gets a bit messier.

Case in point: The Journal News, a Gannett-owned newspaper in upstate New York. The paper took the raging gun debate in the immediate aftermath of the Sandy Hook school shootings as a cue to scrutinize gun ownership in its community.

The Journal News published an interactive online graphic of local handgun owners’ names and addresses. It later had to pull the map. Since then, the New York state legislature has come down hard to protect the privacy of gun owners, creating new measures to limit access to what was previously public information.

Though the publication of handgun owners’ information doesn’t involve erasing historical events, it still speaks to the conflict between personal privacy and the public’s right to information.

Jessica Seigel, an adjunct professor at New York University’s school of journalism and a former Chicago Tribune national correspondent, moderated an SPJ chapter event in New York in April that examined these thorny issues.

Though the panel event dealt with the topic of privacy vs. the right to know at a broader level, erasure became the focal point of discussion. For Seigel, it was only natural that such an important, though not so well-known, topic be examined more closely.

“Journalists (at the forum) were pretty surprised to hear that this is even possible,” Seigel said in a later interview. “It’s clear that if an arrest is made, it should be part of the record, and it should also be part of the record if charges are dismissed.”

But she added that arrest records are “an important local resource” that shouldn’t be tampered with.

“Once you start editing reality, you’re in different territory,” she said.

Among the forum’s panelists was former New York Times Executive Editor Bill Keller, who now writes for the paper as an op-ed columnist and for The New York Times Magazine.

In an op-ed on the topic published after the forum, Keller wrote about the case of Martin v. Hearst that the “dilemma underlying this case is real, and not so simple.”

He pointed out that in today’s world, the “invasive power” of the Internet and its search engines has created a whole host of problems when it comes to personal privacy and stories reported by the media about individuals.

According to Keller, The New York Times gets about four requests a week for records to be purged from the Times’ database, but the paper’s standing policy is only to update stories, not erase them.

“The Times’s policy is not to censor history, because it’s history,” Keller wrote. “The paper will update an arrest story if presented with evidence of an acquittal or dismissal, completing the story but not deleting the story.”

Seigel said it makes sense that someone who has been arrested and had the charges erased would want the information changed.

But she added a common journalistic caveat to that argument: Although for those arrested, having their information online in perpetuity “could be a detriment to their future,” removing any and all record of the incident goes too far.

“It’s crucial to the life of the community to be able to get a hold of the police blotter, so what if someone could go back and have that erased? It’s more than a public service; it’s the reality service,” Seigel said.

As the lifespan of a story on the Internet lasts years, the concern over abiding by professional, journalistic standards while considering the impact on the outcome of people’s lives is becoming more common.

Though it’s nearly impossible to completely remove something from the Internet once it’s been tracked and picked up, republished, tagged and so on, many news organizations have adopted the policy of updating the record to reflect changes to a story previously published.

Hearst’s current policy falls along those lines, as the company is willing to amend its database but not remove the story from the public record. The approach is a standard assertion of First Amendment rights, and it’s also a way to maintain a truthful record of what happened at the time that it happened, and not an amended version of history.

For Ken Paulson, former USA Today editor and now president of First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University, the answer about the media erasing criminal records and incidents is clear. Though he believes that those promoting erasure laws have good intentions to give people a second chance, he thinks completely erasing all records is unrealistic.

Paulson also thinks that the Connecticut case of Martin v. Hearst would start a dangerous trend if the court found in favor of Martin and required Hearst to remove all articles about her arrest.

“It would be a disturbing precedent if a court were to rule that an accurate account of an event that actually occurred could not be made available by the news media,” Paulson said. “That’s prior restraint and would be inarguably unconstitutional.”

Paulson, who worked as a court reporter for two years early on in his career, argues that a larger issue at hand is the media’s reporting practices when it comes to criminal cases.

“The news media have the affirmative duty to clarify the record,” he said. “This happens all the time in the daily record: There’s a report that somebody is arrested, and the newspaper doesn’t always follow up to see what happened.”

As a young court reporter, he said he systematically made an index card for every arrest he reported on and then went back three, six and 12 months later. That thoroughness brought all kinds of new opportunities for stories.

“If someone was arrested, that was a story. If someone was convicted, that was a story,” Paulson said. “How often do you see a news report of charges dropped?”

His reporting approach also created a more robust record of the criminal justice system, one he thinks the media industry at large could benefit from.

“Arrests are easy, but the judicial process is harder,” he said, noting that to truly follow up on a criminal story might require several trips to the courthouse to get answers.

Getting more detailed information from the police stations is equally challenging. “You walk into any police department and there is a log (of arrests), but there’s nowhere on the desk of that police department of lists of arrests that went bad.”

Paulson argues that the challenges in reporting crime stories and their outcomes present an opportunity for more quality reporting.

“If news organizations did a better job at reporting the outcome, we’d have a better understanding of the quality of the judicial system,” he said, pointing out that more in-depth reporting on crime could yield some interesting results. “If a lot of people are arrested who are never charged, you probably have an overzealous police force. If there are a lot of people who are charged but are never convicted, it’s probably the prosecutors.”

But no matter what the eventual outcome of a criminal case, he thinks that threatening reporters for doing their job is way off the mark.

“No one should ever be held liable for printing the truth,” Paulson said.

On the legal side, myriad issues are entangled with the implications of the Connecticut case, and others similar to it. In Europe, where journalists and citizens don’t have the First Amendment protections, the so-called “right to be forgotten” statutes allow for those with cleared records to demand every trace of the record be completely erased. That demand extends to the media (including U.S.-based media with European bureaus) and includes a demand that all records of a case be completely erased, not just updated.

John G. Browning, a Texas lawyer and syndicated columnist who has defended media entities and tried defamation lawsuits, said there’s a battle between the law and the news media.

“The statute in Connecticut really represents a clash between indisputable historical facts that were actually reported, with a fiction created by the legal system,” he said.

Browning adds that legally speaking, erasure is reasonable and understandable, but a line needs to be drawn to keep its application reasonable.

“My problem isn’t with the statute itself,” Browning said. “My problem is with the effort to sue the publication or the journalist about matters of accurate record or fact at the time they were published. It’s downright Orwellian.”

Browning contends that though there is a valid place and a role for erasure and expungement statutes, extending it to include the press is a clear violation of basic democratic rights.

“It is in direct conflict with freedom of the press,” Browning said. “While there’s a place for these statutes, we can’t take them so far as defamation lawsuits.”

Browning believes that the journalistic record should be left intact, no matter how the individual named in the media reports feels about it.

“For what was at the time accurate reporting, it goes too far,” he said, adding that to start making newspapers delete reported records of arrests puts us “on that slippery slope of revisionist history.”

“If we reward efforts to sue using libel law — (and target) what was at the time accurate reporting — it is a very dangerous thing,” Browning said.

For their part, Hearst executives refuse to bow to legal threats, even if they understand the implicit social value in being able to get a fresh start after a dismissed charge or erased arrest record.

“If you are wrongly charged and want to go on with your life it’s very hard,” Eve Burton, Hearst’s counsel representing the case against them for erasure, said at the April SPJ event in New York. “What we try to do is be socially responsible.”

Burton said the claim against media under the erasure statute is that they are “publishing false information.” It creates a way for a plaintiff to hold media companies liable.

But Burton says newsrooms across the country are not willing to take reports out of the archive.

In fact, in the case of Lorraine Martin, a reporter was on the scene during the arrest and saw her taken into custody. Their general practice in the Martin case, and any other similar cases, is to keep the story — accurate at the time of publication — in their archives, while updating the relevant stories published online.

“We’ll go to the death with our right to publish accurate information,” Burton said.

Genevieve Belmaker, a frequent Quill contributor, is a staff writer for the Epoch Times. On Twitter:@Genevieve_Long

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