The magic of expungement

by Walter Olson on September 19, 2012

“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)

{ 10 comments }

1 DensityDuck 09.19.12 at 5:34 pm

? Volokh seems to be missing the point here.

Let’s use as an example testimony introduced at a trial which is stricken from the record. People can talk about the testimony outside of the court case, but the testimony cannot be used to support arguments, and the jury cannot consider it in its deliberations.

To the extent that this stops people talking about “things that actually happened”, it applies to libel suits; if you were arrested but the arrest was expunged, and the fact of that arrest is made known to someone who then uses that fact to make a negative decision about you (say, deciding not to hire you for a job) then you could sue for libel–because there’s no way to show any official evidence that you were in fact arrested, and that the revealer of that fact wasn’t just making it up.

2 John Burgess 09.19.12 at 6:31 pm

I’d have to argue that it’s DD that’s missing the point.

There is a fact in the real world: X got arrested for doing something. Perhaps thousands of people saw it. It was covered by a TV news helicopter. The video went viral and now millions have seen it.

But a court expunges the arrest.

That does not mean the arrest did not happen in fact, because we know it it. It can only mean that for purposes of legal action taken in the events surrounding the arrest, that action did not occur.

It did occur in real life and a court judgment cannot force millions of people to pretend it didn’t. Nor should it preclude mention of the fact that millions know for any purpose other than the immediate legal action in which it was suppressed.

There is no official ‘memory hole’ down which true-but-inconvenient facts can be tossed, even if it would sometimes be nice to have.

3 Richard Nieporent 09.19.12 at 7:48 pm

So how would this revisionist history work Density Duck? Would the government publish a list of new “facts” so that everyone would know what they were supposed to forget? Would the government order that all copies of old newspapers be burned, hard disks be erased and Internet databases be purged of the “incorrect” facts? Or would everyone who knew about the original information have to undergo a lobotomy so that they wouldn’t remember the “incorrect” information. 1984 was a dystopian novel, not a handbook for how to rewrite history.

4 ras 09.19.12 at 7:50 pm

So the person w/the expunged record can even lie about it under oath?

“Were you convicted of armed robbery in 1998?”

“No I was not”

Really?

What if they were instead asked something like:

“Was your 1998 armed robbery conviction the reason you went to prison that year?”

/a layman wondering if surreality is the new normal

5 Fox 2! 09.19.12 at 11:22 pm

You had best mention the expunged event on SF-86, or you will be answering more questions from the Feds than you want to answer. And not get the clearance.

6 DensityDuck 09.20.12 at 3:47 pm

“It did occur in real life and a court judgment cannot force millions of people to pretend it didn’t.”

Sure, but it’s still grounds for a lawsuit if a prospective employer says “I won’t hire someone who got arrested” and that arrest was expunged.

Note that being arrested for an improper reason is still a record of arrest, and records of arrest can affect your employment.

7 ShelbyC 09.20.12 at 6:19 pm

Is it libel to say someone was convicted of a crime, if the conviction was overturned?

The state’s being a little too clever, they’re altering the official definition of “arrest” to exclude expunged arrests. But of course newspapers aren’t obligated to use the official definition of “arrest”.

8 peter 09.21.12 at 4:51 am

” but it’s still grounds for a lawsuit if a prospective employer says “I won’t hire someone who got arrested” and that arrest was expunged. ”

Why? What is so special about employment that forces employers to expunge their memorys ? Remember that expunging the record is for legal reasons, not civil

9 Zoe Brain 09.22.12 at 10:21 am

What about arrest records referring to events that never actually occurred?
For example, when the complainant’s details were accidentally entered in the record instead of the arrestee’s?
Surely the expungement of the record in that case makes records conform to reality?

10 Robert 09.22.12 at 3:10 pm

Interesting. I’ve wondered about this issue as I was once assaulted on the street in my suburban town by a minor, whose record is now sealed. I wanted to put the police report and the documents related to his arrest and plea on the Internet, but don’t know if I’m on firm legal found. I think I will investigate this further. I’d like potential employees–he’s about to graduate from an Ivy League school, to be fully informed.

This is a slightly different situation because I don’t know if a minors record is ever ‘public’. Still isn’t the truth the absolute defense against a libel claim?

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