Hearst Pushes for Dismissal of First Amendment Challenge
When Lorraine Martin was arrested and charged with possession of narcotics, drug paraphernalia, and marijuana, a reporter was there to witness it. An accurate portrayal of the 2010 police raid, in which Martin and one other person were arrested, was then published on the Post, the Advocate and Greenwich Time websites.
In a Connecticut lawsuit that is being watched carefully by media advocates as a test of First Amendment protections for the press, Martin is asking media owners of the Hearst Corporation to remove the stories from its archives. The case represents an attempted new interpretation of what is possible under erasure statues, a little-known legal option used by people to clear their records after minor criminal charges are dismissed or they are found not guilty.
Proposed as a class-action lawsuit but not yet certified as such, it alleges the news reports detailing Martin’s arrest and the charges against her are “defamatory statements.” What was erased from government records should also be erased from the public record, it suggests. The case is also a new test of just how far an individual can go to protect personal privacy.
“It’s actually in the very early stage of development,” said Eve Burton, legal counsel for Hearst, of these so-called Right to Retract statutes, during an April panel event in New York City. The event was put on by the Deadline Club, a local member chapter of the Society of Professional Journalists.
Though the audience at the event was full of reporters, Burton’s description of erasure statutes and the pending lawsuit seemed to catch everyone by surprise. The benefit of erasure statutes is that people do not need to explain previously dismissed offenses to prospective employers, or anyone for that matter.
“It’s either deathly dangerous or the right solution, depending on your view of it,” said Burton, who points out that for those who are wrongly accused and want to get on with their lives, it’s understandable that they’d want all record of the incident erased.
The complication for Hearst and the American media industry at large is that the Martin v. Hearst Corp. et al case is a proposed class-action lawsuit on behalf of all similar Connecticut cases. According to the lawsuit, Martin believes there are “hundreds” of other people who would qualify to join the suit.
In responding to the challenge, Hearst amended and updated its archive, but it strongly defends itself and its right to stand by its accurate reporting. It will not remove the story altogether.
According to Martin’s attorney, Mark Sherman, Hearst has moved to have the case dismissed. On May 9, a judge for the U.S. District Court in Hartford, Conn., will hear the case and decide on the dismissal.
“It’s a tough case,” said Sherman by phone Tuesday.
The legal brief for Martin on the motion to dismiss states that “the Internet has proven an insurmountable obstacle for those who wish to move on with their lives after their cases have been dismissed.”
The brief goes on to say that publishers such as Hearst “allow these wrongful and erased allegations to remain on their websites unchanged.”
“At issue in this case is whether the wrongfully accused have any hope of stopping the dissemination of information that our legislature has deemed to be false,” states the brief.
Erasure statutes vary from state to state, but in Connecticut, where the statues have been on the books in some form for several decades, all information about eligible cases is simply erased from the legal record, and the government is forbidden from using it. The problem lies in the fact that the incident can’t legally be wiped out from public memory or from the record published by a free press.
If the case moves forward and Martin eventually wins, it could have far-reaching implications for media organizations throughout the United States.
Mark Horvit, executive director of Investigative Reporters and Editors, a nonprofit dedicated to improving the quality of journalism, calls the notion that a public record could somehow be erased “crazy.”
“That’s changing history,” said Horvit in an interview. “It’s a terrible idea, and it’s not really possible. You can’t suddenly forget what you heard two or three or four years ago.”
He adds that changing a legal record is one thing, but the fact that the event occurred and the press was there to record it still exists.
“To me it’s mostly the precedent of rewriting history,” said Horvit.
Erasure differs from the more well-known expungement, which removes a criminal conviction from personal history, but lets some government and legal arms, such as courts and probation officers, retain access.
In erasure cases, it’s illegal for any government agency to use the information against the person, but serious cases such as robbery and arson are ineligible for erasure.
According to Hearst’s attorney Burton, the danger with the right to retract statutes is that people are going after news organizations to have information removed from news databases, as if the incident never occurred in the first place.
“[The plaintiffs] are claiming that the creator of the content who keeps any information on a website, an archive, about the arrest after the dismissal has occurred, are publishing false information and responsible for any consequences related to that when the charges have been dropped,” said Burton.
Whether the case goes in its favor or not, Hearst has already taken a firm stance on the issue and will keep the information—accurate at the time of publication—in its archive.
“We are unwilling to take it out of the archive,” said Burton. “We’ll go to the death with our right to publish accurate information.”
Having already amended and update its archive, Hearst has said in cases where the person can show the Hearst media that a charge has been dropped, it will not tag it for Google so it won’t get picked up by the search engine.
Hearst is fairly confident that the outcome of the Connecticut case will go in its favor because of First Amendment protections. Burton said she remains “cautiously optimistic.”
“We thought we had the right to confidential sources and we learned that we don’t, so one never knows exactly where you’re going to find yourself,” said Burton. “I do see a slow train wreck happening.”