Legal Commentary

Judges Order Newspapers to Delete Archive Stories

By Eugene Volokh

One judge rescinded the order, which he apparently signed without realizing that it covered the newspapers (it also covered various government agencies); but the other judge has not, though I hope he will shortly. The Centre Daily Times (Pennsylvania) reports:

Judge Bradley P. Lunsford has rescinded three expungment orders that had directed the Centre Daily Times to delete archived stories.

Judge Tom Kistler, who signed two more similar orders, has not signed amended ones....

The orders pertained to five defendants seeking to have criminal charges expunged from the courts.

It?s a routine order used to direct agencies ? such as police, that keep records related to criminal proceedings ? to clear the records of information about people when charges are dismissed, withdrawn by prosecutors, or after they successfully complete a probationary program called ARD. [In this instance, the cases involved either plea agreements or completion of an ARD. ?EV]

This time, Lunsford said, the CDT and Penn State?s student paper, The Daily Collegian, were added to the standard list without the court?s permission, by attorney Joe Amendola.

The five defendants named in the orders are all clients of Amendola, who said Friday that he decided to add the two newspapers to the standard expungement order because the media?s First Amendment rights were trumping his client?s right to have their record cleared.

?What?s the sense in having your record expunged if anyone can Google you and it comes up,? he said....

It had nothing to do with trying to sneak something through, Amendola said. ?It was there in black and white. It wasn?t like it was stuck through at the bottom on the page.? ...

In two cases, the CDT printed short stories following the defendants? cases. The other three people appeared only in the weekly court report.

?Facts are facts, and we don?t go back and alter the historical record to suit someone,? said [the CDT?s executive editor]. ?Yes, we?re in the age of Google but it all comes down to personal responsibility in the first place. That has not changed.? ...

In addition to being substantively unconstitutional speech restrictions, the orders were also probably procedurally deficient, since it sounds like the newspapers were never given an opportunity to appear in court before the order was issued (and the judges didn?t find any extraordinary circumstances that justified a temporary restraint in the absence of notice to the newspapers). Thanks to Richard Lyon for the pointer.

Full post as published by The Volokh Conspiracy on July 07, 2010 (boomark / email).