Expungment of criminal records doesn't make report false

Kacey Deamer | Libel | Feature | January 31, 2011

The New Jersey Supreme Court ruled Monday that reports of crimes are not necessarily libelous just because the criminal records have been expunged. The court in G.D. v. Bernard Kenny and The Hudson County Democratic Organization, Inc. reversed a trial judge's holding that the use of expunged information could be libelous.

During a primary contest for state Senate in 2007, opponents of candidate Brian Stack issued campaign fliers criticizing him for previously hiring an aide with a criminal conviction. The aide was identified as G.D in court documents. The arrest and conviction were expunged prior to the publication of the fliers. G.D. filed a civil complaint, in which he alleged that the defendants "committed the torts of libel and intentional infliction of emotional distress by disseminating two false and defamatory campaign flyers" and sought compensatory and punitive damages.

Defendants asserted truth as a defense, but G.D. countered that because the record of his conviction was expunged, it never occurred under the law.

"Although our expungement statute relieves a prior offender of some civil disabilities, it does not extinguish the truth," Justice Barry T. Albin wrote for a unanimous court.

A number of organizations, including The Associated Press and the American Society of Newspaper Editors, filed friend-of-the-court briefs in the case. Attorney Thomas J. Cafferty, who represented both organizations, said of the decision: "We're very pleased with the result, with the court recognizing that while there are benefits obviously to an expungement, those are . . . benefits that flow from a legal fiction, and they can't change the underlying facts or truths."

Attorney Bruce S. Rosen represented North Jersey Media Group, which filed a friend-of-the-court brief in the case. In the brief filed by NJMG, the media organization stated: "With the proliferation of data aggregators and the archiving of web pages collecting or describing state criminal records with expungement orders -- but with those aggregators or web pages not necessarily correlating those records with expungement orders -- the effectiveness of the expungement statute is likely to become increasingly problematic and the issue of whether use of expunged criminal records could create liability for defamation or invasion of privacy claims increasingly likely to occur without a strong statement of the law from our courts.”

"At the end of the day, while this did not involved a dissemination of media material, often the media writes about people who may have had expungements, et cetera," Cafferty said.