Legal Commentary

?Down the Memory Hole? Speech Restrictions, Supported by the Electronic Privacy Information Center (EPIC)

By Eugene Volokh

In an amicus brief EPIC just filed in G.D. v. Kenny ? a case pending before the New Jersey Supreme Court ? EPIC argues that convicted criminals should be able to sue for ?disclosure of private facts? when others accurately report on the criminal conviction, so long as the state court system decided to retroactively expunge that conviction. (See here for my earlier post on a different issue in the case.)

Other parts of the EPIC brief argue that revealing the fact of a conviction without revealing that it was expunged might properly constitute false light invasion of privacy. I don?t think this is right, at least if the expungement is not based on a finding of actual innocence, since the important factual assertion underlying the revelation ? which is that someone did something criminal ? remains correct, and puts the person in a true light, not a false light. But that?s a separate matter. 

Here, I want to point to EPIC?s argument that ??truth? is not a defense to privacy torts,? and in particular that ?the appellate court should not have terminated [plaintiff?s] ... public disclosure of private facts claim[] once it dismissed the defamation claim. Invasion of privacy remains an issue of fact for the jury.?

In the case itself, plaintiff G.D. had been convicted in 1993 for possessing drugs with intent to distribute, and sentenced to five years in prison. He later worked for Brian Stack ?as a part-time aide ... when Stack was a member of the Hudson County Board of Freeholders.? Stack later became ?a member of the State Assembly as well as the Mayor of Union City,? and a primary candidate for the New Jersey Senate. ?Defendants believed that plaintiff supported Stack in his primary campaign for the State Senate nomination, although plaintiff maintained that he was not actively working for Stack?s candidacy.? 

So during the primary campaign, defendants ? Stack?s political adversaries ? put out a flyer attacking Stack, by pointing to the past misdeeds of Stack?s associates, including G.D. Defendants apparently didn?t know (and perhaps wouldn?t have cared) that G.D. had gotten the conviction officially expunged ? a procedure that is not, to my knowledge, based on a judgment of innocence, but just on a state?s judgment that expunging the conviction is fair and helps promote rehabilitation. (As it happens, despite the expungement, the conviction was still present on the New Jersey Department of Corrections Web site until after G.D.?s lawsuit against defendants was filed.) G.D. sued for defamation, false light invasion of privacy, and disclosure of private facts; the New Jersey appellate court rejected G.D.?s claim as a matter of law, because the statements were substantially true; last month, the New Jersey Supreme Court agreed to review the matter.

So the plaintiffs were speaking about an official and public New Jersey proceeding ? G.D.?s conviction. They were speaking about something that New Jersey law treats as a serious crime. They were speaking about someone who had been an aide to a politician, and whose character in some measure could be seen by voters as reflecting on the character of the person who chose to hire him.

Yet EPIC takes the view that the legal system should potentially be able to impose potentially huge financial liability for conveying this information about G.D. (if a jury concludes such liability is proper, presumably because the jury concludes publishing such information is, in its view, ?offensive to a reasonable person? and not ?newsworthy?). And this is so despite the Court?s having held that people at the very least have a presumptive right to communicate truthful information drawn from court records, even when the information relates to innocent victims. Surely the First Amendment must assure at least as much with regard to information about convicted criminals, especially ones who have become assistants to political officials.

Of course, some voters and other listeners may reasonably conclude that they don?t care about 14-year-old felony conviction. And a state may choose to no longer distribute such information itself, or to rely on it itself. But it doesn?t follow that the government may gag ? on pain of potentially massive jury awards ? those citizens who continue to think that the information may be relevant to an evaluation of the convicted criminal?s character. 

As I argue in Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 52 Stanford L. Rev. 1049 (2000), this sort of right to suppress the speech of others is a very bad idea, both on its own terms and because of its possible implications for other speech restrictions. I?m sorry to see EPIC arguing in favor of such speech suppression.

Full post as published by The Volokh Conspiracy on May 13, 2010 (boomark / email).