Woman Can’t Scrub Arrest From the Internet

     (CN) – A newspaper that reported on a drug arrest later erased from the legal record is not liable for refusing to update its coverage, the 2nd Circuit ruled Wednesday.
     Lorraine Martin was arrested along with her two sons in 2010 and charged with possession of marijuana. The Daily Greenwich was one of several Connecticut newspapers owned by Hearst to report on the local family’s arrest.
     Though Martin concedes that coverage was correct at the time it was published, she sued Hearst, Southern Connecticut Newspapers Inc. dba Daily Greenwich, and News 12 Interactive for libel once the charges against her were dropped.
     Pursuant to Connecticut’s Criminal Records Erasure Statute, “any person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”
     In Martin’s case, the prosecutor dropped the charges against her after she agreed to take some drug classes. Martin says she still faces discrimination because the story remains online.
     “It’s essentially a scarlet letter,” her lawyer, Mark Sherman, told the New York Times. “She’s become unemployable in spite of the fact that she has no criminal arrest record.”
     A federal judge dismissed the case, and the 2nd Circuit affirmed Wednesday that “the Erasure Statute does not render tortious historically accurate news accounts of an arrest.”
     The Manhattan-based federal appeals court noted that an arrest can have long-lasting consequences even without a resulting conviction, as an employer or landlord can easily find such information in a Google search.
     Martin’s arrest may now be legal fiction, but that does not change its status as a historical fact, the ruling emphasizes.
     “The statute creates legal fictions, but it does not and cannot undo historical facts or convert once-true facts into falsehoods,” Judge Richard Wesley wrote for the three-judge panel. “The statute does not render historically accurate news accounts of an arrest tortious merely because the defendant is later deemed as a matter of legal fiction never to have been arrested.”
     Martin also argued that even if the reports are not false, they are defamatory because they do not mention that the criminal case against her was dropped.
     The court rejected this claim as well, however, since it would force newspapers to update past articles with the most recent facts to avoid charges of defamation.
     “Neither the Erasure Statute nor any amount of wishing can undo that historical truth. The Moving Finger has written and moved on,” Wesley said, citing verses by the Persian poet Omar Khayyam.

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