Under U.S. Law, Freedom of Speech Trumps any Right to be Forgotten

| Philip M. Nelson

While the “right to be forgotten” is part of European law, it is at odds with U.S. precedent. See, e.g., Garcia v. Google, Inc., 786 F.3d 733, 745–46 (9th Cir. 2015). A Georgia law allowing the father of a deceased rape victim to sue a television station for publicizing the victim’s name unconstitutionally violated the First Amendment. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). And in 2004, the California Supreme Court cleared corporations of any wrongdoing when publishing any information from official public records. Gates v. Discovery Communications, Inc., 34 Cal. 4th 679, 685 (2004). In the United States, the First Amendment wins.

However, most states in the U.S. do allow for “expungement”: the process of destroying or sealing arrest and conviction records. Though details vary, such laws usually prevent the government from disclosing the expunged information and permit the subject to withhold the information when asked, including to potential employers or landlords.

Expunged records do not alter historical fact, nor affect non-governmental records. News reports, social media, and firsthand knowledge are unaffected by expungement. While expungement is normally sought for privacy reasons, the expunged information is never truly removed from the public record and substantively differs from the European right to be forgotten.

Both historic and recent court cases establish that under U.S. law, newsworthy stories outweigh an individual’s right to privacy. The balance is different for news—in contrast to mere entertainment.

A 1931 California case illustrates this distinction, where a movie told the true-life story of a former prostitute that had been accused, but acquitted, of murder. The movie used her true name, even though she had changed her life many years prior to the film. The court held that “she should have been permitted to continue [life’s] course without having her reputation and social standing destroyed by the publication of the story of her former depravity with no other excuse than the expectation of private gain by the publishers.” Melvin v. Reid, 112 Cal. App. 285, 292, 297 P. 91 (Cal. Ct. App. 1931). The court focused on the unnecessary disclosure of her personal details. Notably, the movie was entertainment rather than news.

In contrast, when William Sidis, a famous child prodigy in 1910, objected to a New Yorker magazine article many years later, the court reasoned “that at some point the public interest in obtaining information becomes dominant over the individual’s desire for privacy.” Sidis v. F-R Pub. Corp., 113 F.2d 806, 809 (2d Cir. 1940). The precise motives of the press were unimportant. Though as an adult, Sidis had cloaked himself in obscurity, “the question of whether or not he had fulfilled his early promise, was still a matter of public concern.” Sidis v. F-R Pub. Corp., 113 F.2d 806, 809 (2d Cir. 1940). The appeals court affirmed the dismissal of his privacy-invasion-based suit.

More recently, a Massachusetts man objected to the current internet publication of old police blotter reports on his 2013 arrest. He had never been prosecuted and the misdemeanor arrests were expunged from his records. Because an online news outlet had published the old police blotter report, however, an internet search still revealed his past arrest. The court noted that the laws governing expunged records had no impact on the press and there was no defamation, since the report was factually accurate.

The court is not unsympathetic to Plaintiff's wish to reset the narrative about past events nor is the court unconcerned about the potential collateral damage the old reports could have on Plaintiff's employment, housing or credit prospects. However, the plaintiff's claim for relief must give way to the First Amendment of the United States Constitution. Full stop.

G.W. v. Gannett Co., Inc., No. 2082CV0629, 2020 WL 9076502, at *1 (Mass.Super. Dec. 29, 2020).

While companies and individuals may seek to improve their social profile, those efforts only affect superficial knowledge. The U.S. does not require companies to create a memory hole for factual historical events. Newsworthy information may be published even if the subjects of those reports wish it would be forgotten. Under this legal regime, incentives remain strong to preserve a good reputation to thus avoid later embarrassment.