The police blotter wasn’t a good place to see your name in the newspaper even in the days before it ended up on the internet. Now, in this modern era, its digital twin is especially troubling for those among us who wish they could wipe away traces of their arrests. Online news is a tricky thing. It lingers and is readily searched by Google.
It was only a matter of time before someone like New Hampshire state Rep. Jack Flanagan came along to try to make all of those old arrests disappear, or at least be stuck with asterisks. Flanagan has a bill in Concord that would force news organizations to update online police logs and news stories once notified of someone’s acquittal, or in cases where charges are dropped or a defendant is found not guilty. The bill would place the burden on a news organization to “update, retract or correct” an online story. Otherwise the organization could be held liable for damages.
Flanagan’s bill, which was up for consideration by a legislative committee recently, is as impractical as it is unconstitutional. It should be dropped into the dustbin.
The argument that puts it there is clear-cut. The protection of news organizations is baked into the First Amendment. James Madison created the first revisions to our Constitution amid concerns the document placed too much power in the hands of government. He began by protecting five individual and collective freedoms — freedom to practice one’s religion, freedom of speech, freedom of the press, freedom of assembly and freedom of petition.
Specifically the First Amendment says Congress “shall make no law … abridging” freedom of the press. That prohibition extends broadly across government to include state legislatures.
Flanagan’s bill would do precisely what the New Hampshire Legislature is prevented from doing. That alone should be reason to move on.
Giving him benefit of the doubt, the lawmaker has said he was contacted by constituents found not guilty of crimes who were frustrated when media refused to update online reports of their arrests, though he has not identified those constituents.
This inspired House Bill 1157, which Flanagan says does not protect the guilty. “The bigger thing here, what I really want to do, is get the full story,” he said.
As Flanagan notes, some media — including this news organization — routinely update stories and police blotters to indicate the outcome of charges once contacted by the person in question and given the proper documents. The trouble is Flanagan’s yearning to force this practice into law. Doing so would remove judgement and discretion from editors and publishers, replacing it with the government’s. That’s a chilling prospect for anyone who respects the role of a free, independent press in our democracy.
On a practical level, what if there were a compelling reason not to post that update, perhaps because it would be misleading or tell only part of a story? What if the report was copied in another online source not controlled by the originating news outlet? What about online reports that do not originate with news organizations but are made on social media by individuals? Could they be held liable as well? The bill invites a long list of uncertainties.
It also threatens the reporting that news organizations do on police. Who gets arrested and charged with a crime is essential information, not only because of the community’s interest In knowing who’s in trouble but also as a check on the power of police and prosecutors. And it’s safe to say that most, if not all, who see those reports have some basic understanding of the criminal justice system. U.S. Appellate Court Justice Richard Wesley wrote in a 2014 decision, “Reasonable readers understand that some people who are arrested are guilty and that others are not. Reasonable readers also know that in some cases individuals who are arrested will eventually have charges against them dropped.”
Wesley was ruling in a Connecticut case involving news organizations that did not delete items about a woman’s arrest once the charge was dropped. News organizations had no obligation to do so, he found, noting that the information was accurate at the time it appeared. His decision was quoted by the New England First Amendment Coalition in a letter to lawmakers arguing against Flanagan’s bill.
We are not unsympathetic with those who wish to move on with their lives once they’ve been arrested. But even the act of “sealing” one’s records in court, when that’s an option, cannot erase the history of what, in fact, happened.
Placing a burden on news outlets to “fix” those circumstances is both impossible and unconstitutional.