One judge rescinded the order, which he apparently signed without realizing that it covered the newspapers (it also covered various government agencies); but the other judge has not, though I hope he will shortly. [UPDATE: The second judge has now done so, see here.] The Centre Daily Times (Pennsylvania) reports:
Judge Bradley P. Lunsford has rescinded three expungment orders that had directed the Centre Daily Times to delete archived stories.Judge Tom Kistler, who signed two more similar orders, has not signed amended ones….
The orders pertained to five defendants seeking to have criminal charges expunged from the courts.
It’s a routine order used to direct agencies — such as police, that keep records related to criminal proceedings — to clear the records of information about people when charges are dismissed, withdrawn by prosecutors, or after they successfully complete a probationary program called ARD. [In this instance, the cases involved either plea agreements or completion of an ARD. -EV]
This time, Lunsford said, the CDT and Penn State’s student paper, The Daily Collegian, were added to the standard list without the court’s permission, by attorney Joe Amendola.
The five defendants named in the orders are all clients of Amendola, who said Friday that he decided to add the two newspapers to the standard expungement order because the media’s First Amendment rights were trumping his client’s right to have their record cleared.
“What’s the sense in having your record expunged if anyone can Google you and it comes up,” he said….
It had nothing to do with trying to sneak something through, Amendola said. “It was there in black and white. It wasn’t like it was stuck through at the bottom on the page.” …
In two cases, the CDT printed short stories following the defendants’ cases. The other three people appeared only in the weekly court report.
“Facts are facts, and we don’t go back and alter the historical record to suit someone,” said [the CDT's executive editor]. “Yes, we’re in the age of Google but it all comes down to personal responsibility in the first place. That has not changed.” …
In addition to being substantively unconstitutional speech restrictions, the orders were also probably procedurally deficient, since it sounds like the newspapers were never given an opportunity to appear in court before the order was issued (and the judges didn’t find any extraordinary circumstances that justified a temporary restraint in the absence of notice to the newspapers). Thanks to Richard Lyon for the pointer.
Arthur Kirkland says:
The recent dustup likely will provoke the Googlerator to offer a more vivid account of the expunged activity.
Not recognizing the likely consequence, or impropriety, of including newspapers in the proposed order — particularly without notice — seems at least a bit odd.
July 7, 2010, 12:05 amMike Bryant says:
Clearly there is no way the order should stand against the newspapers for the reason you identify, but the attorney is correct about the long term affect. The story stays out there and as hard as expungments are to obtain usually, the news story does nullify the issue to some extent. It will be interesting to see what the ongoing story effects are. I would assume the order has created more stories out there.
July 7, 2010, 12:10 amanon says:
perhaps this is an area that needs reconsideration given our modern era
July 7, 2010, 12:37 amStephen Lathrop says:
Oh, great. Maybe where this will end up is the criminal justice system will develop some kind of double secret probation in lieu of conviction. Satisfy the terms and your conviction never goes public in the first place. Sort of like the juvenile justice system. Perfect for preferred defendants. Another big discretionary tool for prosecutors too. You could put the whole notion of white collar crime right out of sight.
July 7, 2010, 1:10 amMark N. says:
Europe has had some debate about this. I can see the motivation, that if we’re going to release someone (not keep them in jail for life), it’s in society’s interest if they can resume some semblance of a normal life (hold down a job, etc.), and that might be best carried out if we can somehow magically determine that they deserve a clean slate. But it’s led to what, from someone who has pretty strong free-speech views, seem like absurd outcomes, because the only way to enforce a clean slate is to ban anyone from talking about their previous life. For example, Wikipedia was sued for printing the name of a convicted murderer, even though the murder was high-profile and newsworthy (and encyclopedia-worthy), and it’s a matter of public record who the murderer was.
I don’t think there’s much chance of that coming here, given First-Amendment law and such (this is nowhere near any of the recognized 1A exceptions), but I assume the motivation was similar.
July 7, 2010, 2:03 amAlex J says:
How prevalent is it for a Judge to not read, or fully comprehend, an order they sign? I’ve heard people accuse Judges of not reading warrants before signing them but they seemed more like innuendo than anything concrete.
July 7, 2010, 7:42 amDavid M. Nieporent says:
It depends on context; some (lazy?) judges basically leave it to the adversary to object to anything potentially objectionable in a proposed order, particularly if the order is otherwise routine.
July 7, 2010, 9:35 amShort Story- Social Service | Local Weeklypaper says:
[...] The Volokh Conspiracy » Judges Order Newspapers to Delete Archive Stories [...]
July 7, 2010, 9:52 amRick says:
Perhaps the attorney should have also put in the order that everyone who knows about the arrests should be forced to purge them from their memory. Where’s the Men In Black with their neuralyzers when you need them?
July 7, 2010, 10:23 amLooks Like a First Amendment Violation to Me | Snowflakes in Hell says:
[...] of those records. This seems like a pretty straightforward constitutional violation to me. Eugene Volokh posted about this yesterday, and noted: In addition to being substantively unconstitutional speech restrictions, the orders were also [...]
July 7, 2010, 10:38 amShelbyC says:
Given the fact that these orders are binding on folks other than the parties, this seems insufficient. I wonder if discipline for these judges is in order.
July 7, 2010, 12:24 pmUrso says:
I kind of suspect the lawyer did his best to sneak this by the judge. His claim that “it’s not at the bottom of the page” makes me wonder if it was hidden in subparagraph 1(b)(iii). If the judge has signed a form order like this 1,000 times, and this looks just like those other forms, I wouldn’t expect the judge to flyspeck every single one.
July 7, 2010, 12:45 pmDavid M. Nieporent says:
Do I think judges should read everything they sign? Yes. (Or at least make sure their clerks do.)
But I suspect the primary blame falls on the attorney here. When you prepare a proposed order, you’re not supposed to try to slip something in there that clearly doesn’t belong and hope that the judge doesn’t catch it, and that’s what it sounds like the attorney did. I don’t do criminal, but I assume expungement orders are routine orders with boilerplate language.
July 7, 2010, 12:50 pmShelbyC says:
Well, I’d argue the attourney deserves secondary blame. The judge is the one issuing the order, the buck stops with him.
Well, if it’s supposed to be a form order that’s the same every time, then why have a party prepare it? Why not just issue the order yourself? That way you know what’s in it.
July 7, 2010, 1:19 pmUrso says:
Because it’s not the judge’s client, and not his responsibility. Attorneys have a high duty of honesty towards the court — if a lawyer can’t be trusted to draft a proposed order that says what he claims it says, he shouldn’t be a lawyer.
July 7, 2010, 1:23 pmJardinero1 says:
I am thinking we could make a movie out of this. Sydney Pollack could direct. We could hire Paul Newman and Sally Field to lead. We could call it “Absence of Malice”. Yeah, that just might work.
July 7, 2010, 3:03 pmRoscoe says:
There is a bit of irony here. The lawyer likely thought he was being clever to push his clients’ prior crimes down the memory hole. But it generated a new news story identifying the clients and their crimes, and now people are blogging about it.
July 7, 2010, 4:01 pmKenvee says:
This is why expungements make no sense in the modern era. They can’t order someone to purge it from their memory or order a private agency to get rid of the records. Meaning that all of the official sources of information are gone and you’re left with whatever unchecked, uncorroborated, unknown-provenance information is floating around the Internet and the coffee shops. What a great way to really drag someone through the mud — send out all the newspaper clippings of when they were arrested for inappropriate charms on a goat to their potential employers, etc., and they have no way of proving that everything was dismissed with a profound apology.
July 7, 2010, 4:40 pmShelbyC says:
Well, you probably know better than I do how specific these claims are. Does the lawyer make a claim that an order he drafts says a specific set of things? In this case, that the order requires agency X, Y, and Z, and nobody else, to delete their records? The lawyer here says he doesn’t feel he deceived the court.
July 7, 2010, 6:02 pmSecond Judge Cancels Order That Required Newspapers to Delete Archive Stories | theConstitutional.org says:
[...] Centre Daily Times reports, apropos the story noted here yesterday, and notes: The Judge [Judge Thomas King Kistler] said he learned that a total of 41 expungement [...]
July 8, 2010, 7:14 amDavid M. Nieporent says:
Well, what else is he going to say, that he admits he did wrong and thinks he ought to be disbarred?
A lawyer generally doesn’t make a claim about what the order says; he just submits the proposed order.
July 8, 2010, 1:58 pm