Media in N.H. and N.J. protected for disclosing annulled records

From the Spring 2011 issue of The News Media & The Law, page 29.

Journalists in New Jersey and New Hampshire no longer need to worry about lawsuits that arise from the disclosure of expunged criminal records. Court decisions in those states this year have clarified press protection in such cases.

In January, the New Jersey Supreme Court found that a report of an expunged criminal record is not necessarily libelous.

The case, G.D. v. Kenny, concerned a 2007 state Senate election campaign, during which fliers were issued by opponents of candidate Brian Stack.

The campaign fliers criticized Stack for previously hiring an aide, G.D., with a criminal conviction that had been expunged prior to the fliers’ publication.

G.D. filed a civil complaint alleging libel and intentional infliction of emotional distress “by disseminating two false and defamatory campaign flyers.”

The 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.

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

“It’s ridiculous” that they’re “try[ing] to say that something that happened didn’t happen,” said Bruce Rosen, an attorney who represented North Jersey Media Group, which filed a friend-of-the-court brief in G.D. v. Kenny. “It just makes clear that the truth is the truth,” he said regarding the court’s decision.

“It’s not a huge area of law, but it’s just important to put it behind us,” Rosen added. The New Jersey Supreme Court decision will provide protection for the press from any future issues, he said. “It put a lid on this. I think it’s a dead issue. No one is going to be raising these issues again.”

About one month after the New Jersey Supreme Court ruling, the New Hampshire Supreme Court issued a similar decision.

In Lovejoy v. Linehan, the court found that disclosure of a political candidate’s expunged criminal record cannot give rise to an invasion-of-privacy claim and unanimously affirmed a trial court’s dismissal of the case. David Lovejoy was convicted in 1989 for simple assault, but the conviction was later annulled.

In 2009, Lovejoy ran for Rockingham County sheriff against incumbent Dan Linehan.

Linehan and Deputy Sheriff Mark Peirce leaked information about the 1989 conviction to a reporter at the Portsmouth Herald, and the newspaper used the information in a story.

Linehan and Peirce resigned before being charged under a state statute that criminalizes disclosure of an annulled arrest or conviction record as a misdemeanor, but Lovejoy sued them, the newspaper, the reporter who wrote the Herald story and Rockingham County for “invasion of privacy by disclosure of private facts.”

The trial court dismissed the case, relying on the 2002 U.S. Supreme Court case Bartnicki v. Vopper, which held that media cannot be held liable for publishing information of public concern that is obtained unlawfully by a source, but where the media are blameless in the illegal interception.

The New Hampshire Supreme Court affirmed the trial court’s decision, finding that, because it was a matter of public concern, the disclosure of the annulled conviction record could not lead to a successful suit claiming public disclosure of private facts.

“We conclude that a prior assault conviction, whether subsequently annulled or not, is relevant to the qualification for [the position of sheriff],” the court concluded.

William Chapman, a New Hampshire media attorney whose firm represented the media defendants in Lovejoy v. Linehan, noted that a record expunged by the court does not necessarily expunge it from news archives or the public memory.

“I think the courts understand what the problem is with the Internet,” he said, noting that the Internet allows for any mention of a record, even if the record is expunged, to be retained and available to the public.

Chapman sees the New Hampshire and New Jersey decisions as a start for better press protection, but said they are not a protection from further litigation.

“I think the precedents of the two cases are very helpful to the press, but it doesn’t mean that there isn’t going to be a litigant out there who wants to challenge it because he or she can draw some distinctions between his or her case and the Lovejoy case or the case in New Jersey,” Chapman explained. “Plaintiffs’ lawyers . . . can get very creative.”

One argument Chapman could foresee a lawyer making is that the publication of an article revealing the expunged criminal record of a plaintiff “intentionally interfered with [the plaintiff’s] potential or prospective contractual relationship” with a prospective employer.

“I think that there are more concerns than defamation and privacy, with the concerns out on the edges that I’ve just mentioned being very fact specific, as opposed to a defamation claim or invasion of privacy claim,” Chapman said. “In terms of protection that the press can count on without having to litigate the issue, it’s going to require statutory reform.”

New Hampshire lawmakers have proposed a bill that would give press that protection. House Bill 82 was passed by the House, but, as of early May, had not yet been approved by the Senate.

Chapman described H.B. 82 as “a bill that would give the press in New Hampshire the assurance that, if it ran a news story that included reference to an expunged record, there would be no liability.”

The bill adds three paragraphs to the statute governing the annulment of criminal records, two of which pertain to the media.

The first says: “A journalist or reporter shall not be subject to civil or criminal penalties for publishing or broadcasting: (a) That a person had a criminal record that has been annulled, including the content of the record. (b) That a person has a criminal record, including the content of such record, without reporting that the record had been annulled, if the journalist, or reporter does not have knowledge of the annulment.”

Under this addition, journalists who did know about the annulment of the record are protected. The bill specifies that if the annulment is known, then that fact must be disclosed.

The second notes: “A journalist, reporter, or media organization shall not be subject to civil or criminal penalties for not removing from public access or making corrections to a previous report that a person has a criminal record, including the content of such record, if subsequent to the report, the person’s criminal record had been annulled.”

The bill is currently before the Senate, and, if passed and signed into law, it would be the first of its kind to protect journalists from litigation regarding the disclosure of annulled criminal records.