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August 4, 2021

"Newspaper Expungement"

The title of this post is the title of this new essay by Brian Murray now available via sSRN. Here is its abstract:

Expungement law has made great strides over the past two decades, with state-level reforms broadening the types of criminal records eligible for expungement.  Further, expungement has been extended beyond arrestees to those who have been convicted, thereby promising to alleviate some of the burdens of reentry.  Nevertheless, expungement remedies only touch officially held information or public data possessed by different branches of government.  This means that private actors, if they possess the information, are beyond the reach of expungement law.  Such actors, whether individuals, background check companies, newspapers, or other firms, enjoy the ability to continue to hold and use such information.  This results in a whack-a-mole problem for the successful expungement petitioner who has achieved the relief that the state allows, only to see its efficacy thwarted by private activity with the same information.

Recently, one private actor, newspapers, has begun to set up processes that resemble formal expungement.  Newspaper editors have responded to the limits of formal expungement by constructing their own procedures for evaluating whether to erase, seal, or alter information that is damaging to the reputation of those who have encountered the criminal justice system.  This development has occurred on the heels of the right to be forgotten movement in Europe, which has gained little traction in the United States.  This Essay contextualizes the phenomenon of newspaper expungement, situating it within a larger legal backdrop, before describing the stated activities and aspirations of some of the newspapers themselves. It concludes by charting how such practices relate to broader critiques and goals of criminal justice reform.

August 4, 2021 at 11:51 AM | Permalink


Speaking up as a liberal & believer in second chances to say that I find ordering newspapers to delete material from their archives disturbing.

Posted by: John | Aug 5, 2021 12:26:13 AM

I don't think "ordering" newspapers will have any chance with our First Amendment. The rules in other countries would be different.

But, the summary notes: "Newspaper editors have responded to the limits of formal expungement by constructing their own procedures" etc.

And, I think that is valid as a whole. After a certain point, the news value of arrest data in newspaper files is limited. I would add as an aside I'm wary of newspapers publishing the photos of those only arrested. Again, actually blocking this legally would be problematic.

Posted by: Joe | Aug 6, 2021 12:58:44 PM

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