Win or Lose in Court, You Cannot Erase the News

Gene PolicinskiCommentary
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

Sometimes the meaning of the 45 words of the First Amendment seems to escape even those trained in the law.

In Pennsylvania last week, two judges in Centre County — home to Penn State University — signed off on what generally are standard instructions to police and other agencies to expunge certain official records of five people involved in criminal investigations.

But the orders, thanks to the defense attorney for the five, also required that two area newspapers erase archived news reports about the defendants, who faced charges ranging from assault to drug possession.

“Imagine getting such an order, right before the July 4th holiday,” said Bob Heisse, executive editor of the Centre Daily Times, one of the newspapers involved.

Both judges have now voided the orders, but news reports now say as many as 41 orders presented to the court by defense attorney Joe Amendola included similar demands of news organizations.

“What’s the sense in having your record expunged if anyone can Google you and it comes up?” Amendola told the Centre Daily Times. The lawyer, in later news reports, said the newspapers were added to the orders without his knowledge, by a staffer in his office.

Regardless of how the newspapers came to be included in the various court orders, what makes “sense” is to report — and retain those reports — on arrests and court recordings, whether it’s the era of Google or in earlier times when the nation’s Founders took care to provide for an independent news media.

Yes, none of us likely would look forward to having our name or face in a newspaper, on a website or on TV if we were to be arrested and face trial. And there surely is a certain amount of pain and shame in having those facts come up in an online search later in life.

But, as Heisse said, “Facts are facts, and we don’t go back and alter the historical record to suit someone.” Elizabeth Murphy, editor in chief of the second newspaper involved, the Daily Collegian, said it “is a record of history as it happens from day-to-day. … We’re here to report the facts as they are and that’s what we did."

Even when the facts are negative, we’re fortunate to live in a nation where arrests and court proceedings are on the record, open to public view and not subject to being altered or erased at whim — or government order.

The alternative is so much worse than embarrassment.

In Argentina and Chile, as many as 30,000 people may have gone missing during the 1970s and 1980s after being arrested or abducted by police or paramilitary forces, often in the middle of the night, leaving family and friends with little or no information for years. One of the problems still facing those trying to trace the so-called “Disappeared” from that reprehensible era is a lack of official records that were long since erased, if ever created.

There also is the public’s ability to hold our courts and officials accountable. Journalists, civic action groups and others use individual cases and aggregate data to track and measure aspects of the justice system, from conviction rates to law-enforcement practices to how public funds are spent.

As a practical matter, isn’t a record showing what the government did not do potentially as valuable as one showing what it did — as opposed to a blank slate? I would think a copy of a court record would trump a Google printout anytime, should there be a question about the outcome of a criminal charge or a lawsuit.

All too often, we fall into the easy thinking that news reports about arrests and trials just add to the burden facing defendants or litigants. High-profile cases like the O.J. Simpson trial and voyeuristic reports on Lindsay Lohan’s legal woes obscure the reality of the issues at stake daily in courts in every state: freedom and justice for all.

The Founders knew the dangers of Star Chamber inquisitions and secret trials with pre-determined outcomes. The result of their experience was the First Amendment’s provision for a free press.

What the Founders never experienced — nor should we — is the result from printing newspapers with court-ordered disappearing ink.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: E-mail: [email protected].