Update—Should school newspapers, or any newspapers for that matter, be forced to delete archived stories in order to clear a person’s record online? That was the issue before a state judge in Pennsylvania in a case that touches on the potential for media censorship in the digital era.
The Centre Daily Times and the Daily Collegian student newspaper at Penn State were ordered to expunge records of information about two defendants, an unusual provision inserted by a defense lawyer into otherwise standard orders signed by Centre County Judge Thomas King Kistler. Kistler signed new expungement orders in the cases on July 7 and called the initial orders “an inadvertence.”
Such orders typically direct public agencies to clear a person’s record in cases where charges are dismissed, withdrawn, or aren’t applicable for someone who’s a first-time offender who completes a rehabilitation program.
Attorney Joseph Amendola told the Daily Times he included the newspapers in orders for five defendants, including the two before Kistler, because he was concerned the media’s First Amendment rights to free speech were trumping his clients’ rights to have cleared records. It’s common for attorneys to draw up legal documents for judges to consider.
Centre County Judge Bradley Lunsford, who handled the three other cases, cited free-speech concerns July 6 in signing new expungement orders, submitted by a newspaper lawyer, that rescinded an order he issued July 2. The new order did not require the newspapers to expunge information about the defendants, including news stories.
“Oh, my, yes. There’s definitely a First Amendment issue,” Lunsford told the Associated Press on July 6 in a phone interview before he signed the new order.
Kistler, who received similar proposed revised orders from a newspaper lawyer, initially said he wanted to schedule a meeting this week with county President Judge David Grine and Amendola before taking further action.
Instead, Kistler signed new expungement orders on July 7 that did not ask the newspapers to delete archived versions of stories.
“The judges check certain things, but we don’t check the language of the orders,” Kistler said in a phone interview with The Associated Press. He compared it in part to people not having time to read the fine print when signing for an insurance policy, but added: “This is now something that everybody will be checking on.”
Newspapers increasingly are getting requests from private citizens asking for archived stories to be deleted out of fear, for instance, that a potential employer might find damaging information on the internet.
One of the Pennsylvania cases involved a man who had charges—including sexual assault and aggravated indecent assault—withdrawn in a plea deal in which he admitted two counts of indecent assault. The other involved a woman who finished a probationary program on two counts of endangering the welfare of a child.
Newspapers ultimately are under no legal obligation to change archives that are factually correct, and an expungement of court records doesn’t mean the events never occurred, said Melissa Bevan Melewsky, a media law attorney for the Harrisburg-based Pennsylvania Newspaper Association.
“It’s accurate when it was reported, and that means there’s nothing illegal about it,” she said. “It’s protected speech.”
Amendola did not immediately return phone messages from the AP seeking comment. He told the Daily Times this was a national issue bigger than the newspaper and judges.
“What’s the sense in having your record expunged if anyone can Google you and it comes up?” he was quoted by the newspaper as saying. “Ultimately, this is an issue that needs to be decided by the legislature.”
The Centre County judges usually sign 30 to 50 such orders at a time, once or twice a week. The orders are vetted by the probation department and the district attorney’s office before going to a judge for approval.
Lunsford said his new orders, first submitted for approval by Daily Times attorneys, also rescinded a mandate that a private web site that allows the public to search criminal records also expunge information.
Defense lawyers might be frustrated about the availability of information on the internet, Lunsford said.
“But what they don’t realize from the court’s perspective, we only have jurisdiction over government offices that play a part in the prosecution of a particular individual, and no one else,” he said.
The Daily Times had published short stories on the cases of two defendants, while the other three cases appeared in weekly court reports. Executive editor Bob Heisse likened archived stories to historical records of facts, which aren’t altered.
“I appreciate [Lunsford] acting as fast as he could to straighten this out,” Heisse said. “It’s very clear that it was on the wrong path.”
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