Legal Commentary

Is It Libel to Say Someone Was Convicted of a Crime When the Conviction Has Been Expunged?

By Eugene Volokh

No, says a New Jersey appellate court in G.D. v. Kenny, reversing a trial court decision that had allowed the case to proceed. A state statute provides that when a conviction is expunged, ?the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred,? but the court correctly concludes that this restraint on the government can?t require private speakers to act as if the conviction hadn?t occurred:

A truthful statement will not support a cause of action based on defamation, and the truth of the statement is an absolute defense to a claim of defamation. Ward v. Zelikovsky, 136 N.J. 516, 530 (1994) (stating, ?True statements are absolutely protected under the First Amendment.?)....

Plaintiff contends that [a contains no guidance for this matter because the Oregon court rested its decision on a specific aspect of the Oregon statute. We are not persuaded by this argument because its logical corollary is that a state legislature is vested with the power to control the viability of the defense of truth to a libel action. Such a position would be repugnant to the core values of the First Amendment....

The speech was in a campaign flyer faulting a candidate for employing G.D. as an aide, given G.D.?s past conviction for possessing cocaine with the intent to distribute it.

Full post as published by The Volokh Conspiracy on December 21, 2009 (boomark / email).