Considering truth, libel and confidentiality
By John C. Henegan
MPA General Counsel & Libel Hotline Attorney
“What is truth? said jesting Pilate, and
would not stay for an answer.” – Sir Francis Bacon
May the recipient of a gubernatorial pardon sue a newspaper for libel after the paper correctly reports that the person is a convicted felon but after the pardon has been granted? May the recipient sue the paper for refusing to take down a story about the original conviction from the paper's web site? Not in Connecticut or in those other states – New Jersey, Oregon, and Massachusetts – that have squarely addressed this issue.
Most recently, Lorraine Martin sued several Connecticut media outlets on her on behalf and behalf of all others similarly situated alleging defamation arising from the published accounts of her 2010 arrest, which later had been nolle prossed and erased under the Connecticut Criminal Records Erasure Statute. Martin alleged that although the accounts of her arrest were factually true when published, they became false and defamatory once her charges were nolled and the papers refused to take down articles about her arrest after she asked them to do so.
In rejecting Martin’s libel claim, the United States Court of Appeals for the Second Circuit explained that while the Connecticut “statute creates legal fictions, . . . it does not and cannot undo historical facts or convert once-true facts into falsehoods [or] . . . render historically accurate news accounts of an arrest tortious” or defamatory. See Martin v. Hearst Corp., 777 F.3d 546 (2nd Cir. 2015). Reviewing the state statute, the Second Circuit found that the Connecticut legislature “contemplated erasure only in the context of the judicial and law enforcement systems” and not for any other purpose.5 Since “the reports of her arrest were true at the time they were published . . . , [n]either the Erasure Statute nor any amount of wishing can undo that historical truth. The Moving Finger has written and moved on.” Accordingly, the Second Circuit affirmed the district court’s dismissal of Martin’s lawsuit.
What result in Mississippi? Are there any decisions of the Mississippi Supreme Court which suggest that the appellate courts of Mississippi might follow the approach and rationale employed in these other states’ rulings and dismiss a libel claim based on similar facts? While it always perilous to hazard a prediction about such matter, a series of recent of Mississippi Supreme Court decisions may hold the key to the answer to this question.
In those cases, the State Supreme Court affirmed the judgments of different state circuit courts which dismissed suits filed by pardoned felons who claimed that the state courts of Mississippi had the inherent authority to expunge the records of their criminal convictions following a “full, complete and unconditional pardon” that “absolved [the pardoned felon] from all legal consequences of this crime and conviction.” See, e.g., Hentz v. State, 152 So. 3d 1139 (Miss. 2014); Robertson v. State, 158 So. 3d 280 (Miss. 2015). In rejecting the pardoned felons contention, the State Supreme Court quoted with approval language from other appellate courts across the country which concluded that a “pardon in no way reverses the legal conclusion of the court” and its “effect . . . is not to prohibit all consequences of a pardoned conviction. But to preclude future punishment for the conviction.” See Hentz, 158 So. 3d at 1141-42. As the State Supreme Court had noted in a prior decision an unconditional pardon “does not edit history[:]” it “‘involves forgiveness[,] . . . not forgetfulness[,] . . . it does not wipe the slate clean. ’”
Whether it is ever actionable for a newspaper to publish truthful information about an individual was recently addressed and answered in the affirmative in Dahlstrom v. Sun-Times, Media, LLC, 777 F.3d 937 (7th Cir. 2015). In Dahlstrom, a panel of the Seventh Circuit Court of Appeals ruled that the Sun-Times violated the statutory privacy rights of five members of the Chicago under the Federal Driver’s Privacy Protection Act, 18 U.S.C. § 2721, when it published certain truthful information that its reporters had acquired unlawfully about the five police officers from an agency of the Illinois state government. Whether the federal or state statute at issue will be upheld under a First Amendment challenge depends on whether (1) the information is confidential under a state or federal statute; (2) the information was obtained unlawfully; and (3) the prohibition against publication of the confidential information is content-neutral and narrowly tailored to the government’s interest in making the information confidential. If all three elements are present, a newspaper can be held liable for publishing truthful but nonetheless confidential information about a person.
John C. Henegan is a member of Butler Snow, PLLC, and counsel to the Mississippi Press Association. Members can send general questions about libel or requests for story review to firstname.lastname@example.org.