If you practice media law, then it comes as no surprise that individuals who have had their criminal records sealed also want to wipe the Internet clean of any reporting on those records. What may be a "legal truth," however, is not necessarily true under defamation law. It is at this intersection of fairness and truth that the Supreme Court is being asked to find itself. Martin v. Hearst Corp., et al., Case No. 14-1301 (Apr. 28, 2015) ("Petition"). Specifically, Lorraine Martin, petitioner, seeks to clarify whether traditional First Amendment law should be altered when it comes to digital defamation claims. While it is unlikely that the Supreme Court will accept certiorari (as discussed below), the issue of whether a publisher is required to takedown an article referring to a criminal act that was accurate when published but has since been expunged, sealed, or erased under applicable state statutes is one of importance to online media.
Martin v. Hearst Corporation Makes Its Way Through the Second Circuit
In 2010, Lorraine Martin, a resident of Greenwich, Connecticut, was arrested on various drug charges. Hearst Corporation, and its local news outlets, published reports of Martin's arrest. There is no dispute that the original publications were accurate at the time they were published. In 2012, pursuant to Connecticut's "Erasure Statute" (General Statute §54-142a), the charges against Martin were dismissed. Under the Erasure Statute, all records of the arrest are "erased," Martin is deemed to "have never been arrested," and Martin may swear under oath that she was never arrested.
Following the state court's dismissal of her charges, Martin (like many others in her situation) requested that the media remove all references to her arrest from their website. The media refused to takedown the content. Martin filed a lawsuit alleging libel, false light, negligent infliction of emotional distress, and invasion of privacy. The case was removed to federal court, and the United States District Court for the District of Connecticut found that the state's Erasure Statute did not render the prior publications false. Martin v. Hearst Corp., 3:12CV1023 MPS (D. Conn. Aug. 5, 2013).
Martin appealed to the Second Circuit, which affirmed. The appellate court found that the publications were true regardless of when published because the Erasure Statute did not render them false as a matter of historical fact. Martin v. Hearst Corp., 777 F.3d 546 (2nd Cir. 2015).("The [Erasure] statute creates legal fictions, but it does not and cannot undo historical facts or convert once true facts into falsehoods."). The Second Circuit also found that the media's reporting of the plaintiff's arrest without an update "implies nothing false about [Martin]." Id. at 553. Martin filed a petition for certiorari with the Supreme Court.
Traditional First Amendment Law in the Digital Age
Toggling between the future of First Amendment law, and over fifty years of precedent, Martin struggles to find her stride in her petition to the Court. First, Martin's argument, ironically, rests on a false premise – the "falsity" of the 2010 arrest. Petition, pp. 25, 28. Martin concedes – as she must – that "the truth or falsity of a statement for purposes of libel cases is judged as of the date of publication." Id. at p. 21 n.7 (citations omitted). Connecticut, like most states, requires a statement to be false to be actionable as defamation. Id. at p. 9 (citations omitted). "Truth provides an absolute defense to defamation." Id. Notwithstanding this well-established principle of defamation, Martin argues that what is "true" can be redefined under the law, including defamation law.
Second, while it would be helpful to hear from the Justices on these issues, the Court is unlikely to grant certiorari. All courts appears to be in agreement that the First Amendment protects the media defendants' publication of Martin's 2010 arrest. Recognizing this potentially fatal flaw, Martin argues that "[a]t least one court has answered 'yes' when faced with a similar set of facts." Petition, p. 12 (citing Lamon v. Butles, 44 Wash. App. 654 (Wash. 1986), aff'd, 110 Wash. 2d 216 (Wash. 1988)). The court in Lamon, however, was not presented with a similar set of facts, and no other case is cited by Martin as analogous, or creating a Circuit split. In Lamon, the allegedly defamatory article was published after a court dismissed the plaintiff's assault conviction, and the article failed to mention the dismissal because, while the reporter knew of the dismissal, she testified that she failed to understand the effect of the dismissal. 44 Wash. App. at 657-659. In other words, the article was not accurate when it was published – a key distinction from the article at issue in Martin.
In addition, most states currently have some form of "correction" legislation that protects individuals from false publications. In Ohio, for example, section 2739.13 of the Ohio Revised Code requires newspapers to, "upon demand of any persons affected," "print, publish, and circulate any statement or article setting forth . . . the truth . . . which such persons or their representatives, shall offer to such company for publication." R.C. §2739.13. Of course, correction statutes, like the one in Ohio, are inapplicable if the original publication was accurate when published. Therefore, these types of statutes provide no comfort to those seeking to wipe the Internet clean of their past mistakes.
Finally, Martin's last argument to the Justices addresses the "practical consequences" of maintaining the status quo. Yet, the practical consequences of requiring media companies with an online presence to remove all stale content is anything but practical. It is simply not feasible (economically, technologically, or otherwise) for media companies to monitor the lifespan of every arrest reported on; make the legal determination whether an event that was factually true is now a legal falsity requiring removal; and ensure that all links to the online content are wiped clean. Requiring any of the foregoing runs afoul of the First Amendment's protections of freedom of speech and freedom of the press.
Whether fair or not, we all must bear the burdens of our past mistakes. Unfortunately, the Internet's memory is more enduring than our human memories. Unlike Europe, however, the U.S. has not (yet?) adopted a right to be forgotten. Therefore, the First Amendment continues to protect accurate reporting of historical fact by the press. Indeed, punishing the press for reporting accurately is the very injustice the First Amendment seeks to prevent, and it is unlikely that the U.S. Supreme Court – or any other court – will find otherwise in the near term.