Forget The Right to be Forgotten
In one of its first moves of this term, the United States Supreme Court denied certiorari in the case of Martin v. Hearst Corporation. This non-action makes it unlikely that the “right to be forgotten” will find a home in the United States.
First things first. The case involves a woman named Lorraine Martin. Ms. Martin and her two sons were arrested on August 20, 2010, after police, who suspected a drug ring was operating out of her house, searched her home and found marijuana, scales, plastic bags, and drug paraphernalia. Martin and her sons were charged with various offenses related to the possession of narcotics and drug paraphernalia.
On August 26, 2010, the Connecticut Post, Stamford Advocate, and Greenwich Time, all owned by the Hearst Corporation, published articles online, stating that Martin had been ‚arrested and charged with numerous drug violations.
More than a year after the Defendants published the reports of Martin’s arrest, the State of Connecticut decided not to pursue its case against her, and dismissed the action in January 2012. Because Connecticut elected to dismiss the criminal case, Martin’s arrest records were erased pursuant to the Connecticut “Erasure Statute.” When records disappear under the Erasure Statute, the defendant (in this case, Ms. Martin) is “deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased.”
Following the erasure, Ms. Martin demanded that the newspapers remove the reference to the arrest from their Web sites. Ms. Martin argued that under the law, her arrest never happened. Thus, a report saying she was arrested was, from the moment of erasure forward, false.
Hearst argued in response that, while a state legislature has power, it can’t turn a historical fact into fiction. And a news organization can’t be sued for a maintaining a record of a historical fact.
The federal district court of the Southern District of New York (Hearst is headquartered in Manhattan) ruled in favor of Hearst, and the Second Circuit Court of Appeals affirmed.
Undaunted, Ms. Martin filed a petition for writ of certiorari with the United States Supreme Court. With only some exceptions, the U.S. Supreme Court exercises “discretionary appellate review.” That means they don’t have to take every case that comes to them. A party who wants the Supreme Court to review a decision has to ask the court to take the case via a “cert petition.” And about 95% of the time, the Court declines.
Ms. Martin did not make the 5% group, and her case is now finished. I don’t think this should surprise anyone. While some European nations have adopted “right to be forgotten” laws, that concept is not likely to take root in the United States. The First Amendment would present an insurmountable hurdle I think. We value truthful speech, especially when it concerns government operations. And an arrest surely falls in that category.
Connecticut’s erasure statute prohibits state and local governments from revealing details about Ms. Martin’s arrest. And it allows Ms. Martin to omit any reference to it on job applications and other inquiries. But it cannot rewrite history completely. And the law will not allow a news outlet to be sued for reporting information that was true at the time it was reported. And that may be a tough break for Ms. Martin, but it is the American way.