“Is It Libel to Say Someone Was Arrested When the Arrest Record Has Been Erased?” Last year the New Jersey Supreme Court said no in a case raising the same issue as to convictions, saying the law’s expungement provision
is not intended to create an Orwellian scheme whereby previously public information — long maintained in official records — now becomes beyond the reach of public discourse on penalty of a defamation action. Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.
Now, however, a lawsuit filed in Connecticut seeks to assert similar liability as to mention of an erased arrest record. The state erasure statute provides that the person whose record is erased “shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.” Eugene Volokh finds the theory of liability constitutionally defective:
the First Amendment protects other people’s rights to talk about arrests that had — as a matter of historical fact — actually happened. A statute can’t rewrite history, and force others to pretend that something didn’t happen when in fact it did happen.
(& Above the Law)