The Media and the ‘Right to be Forgotten’

When it comes to seeking expungement of stories from the media, do some people seeking a clean start have an advantage when making their case to newspaper boards considering their requests?

Should the boards be comprised of purely journalists?

These are two of the questions raised in a recent paper “Newspaper Expungement,” written by Brian M. Murray, associate professor of law at the Seton Hall University School of Law, published in Vol. 116 of the Northwestern University Law Review Online,.

About  one in three U.S. adults―some 70 million people―have criminal records, including those arrested but not convicted, according to Pew Trusts. Getting a job or renting a home become challenges when those records float around on the Internet.

Over the last 20 years, expungement law has made strides with state-level reforms of which criminal records are eligible for expungement.

As of April 2021, at least 11 states have automatic record expungement laws, says Pew.

This spring, Michigan put into place changes that go the farthest in giving people a second chance.

But government records are just one piece of the puzzle. Newspapers and websites carry stories of arrests and even mugshots; and while some media are willing to address the problem, there are difficulties.

“This creates a whack-a-mole problem for the successful expungement petitioner who has achieved the relief that the state allows, only to see its efficacy thwarted by private activity with the same information,” writes Murray.

Private-sector reluctance to expunge criminal records comes from the First Amendment’s “enshrined norms related to free speech and access to official information,” according to Murray’s paper.

Also, the American public has a “generalized skepticism of governmental authority and a thirst for criminal justice transparency throughout history.”

In the digital age, newspaper vaults holding past issues are beside the point. In Europe, the Right to Be Forgotten Movement (RTBF) has made progress, but “Google, in a series of well known cases, has fought this right tooth and nail.”

In America, the drive to help people achieve clean slates lags behind Europe. However, a number of newspapers are making efforts to hear requests and expunge stories and photos, the two leading examples being The Boston Globe and The Cleveland Plain Dealer.

“Newspapers and media organizations have begun to step into the breach,” Murray acknowledges.

But if money and access to lawyers makes expungement of government criminal records substantially easier for petitioners, elite status is definitely a factor in approaching the media as well.

“While newspapers allow relatively informal application processes, the primary vehicle is the Internet itself. Accessing the website or the online application is a de facto requirement for a smooth process. Many people who have been arrested or incarcerated are indigent; for these individuals, seamlessly accessing the internet to accomplish such a task can be difficult.”

The second troubling area is “Who decides?” Murray writes. Those in the room “are almost exclusively journalists.”

Even if the journalists consult with criminal justice groups, is this sufficient to make sure the broader public’s needs are served and they understand what should happen to the information?

“After all, it is the public whose information is getting expunged and it is the public who is using this information,” he writes.

Murray raises the issues of supervision of the decision-makers and accountability for their judgments in these decisions to expunge records. Transparency in how decisions are reached would be highly desirable.

But real solutions to these problems may need to come from a deeper place, Murray writes.

“Perhaps it is time to consider alternative solutions for giving second chances, even if they do not carry the force of law in this space and even if they require a serious change in perspective.”

The full paper can be downloaded here

Nancy Bilyeau is deputy editor of The Crime Report.