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When truth becomes false then defamatory

If you love to see red carpet photos of your favorite celebrities gussied up in their fancy finery, you probably love it almost as much to see them bleary-eyed and disheveled in their mug shot photos.

But for the non-celebrities whose mug shots and arrest records are online, it's no fun at all. A lawsuit was just filed that seeks to change the obligations of electronic news media to take down those reports.

Lorraine Martin, a Connecticut nurse, was arrested in 2010 along with her sons when the police raided her home and found a small amount of marijuana. The charges against Martin were later dropped and the official criminal record was purged.

But Martin has since been unable to find a job, and she claims it is because when you type her name into a search engine, articles like the one entitled "Mother and Sons Charged with Drug Offenses" are still available through online news outlets.

So Martin has filed a lawsuit against the local news outlets for herself and on behalf of others like her who were arrested, but whose criminal records have since been expunged. The suit claims that the online media outlets defame them by continuing to make available content about the story.

The press is protected by the First Amendment of the Constitution, which states in pertinent part: "Congress shall make no law … abridging the freedom of speech, or of the press …"

But there are some forms of speech that are not protected by the First Amendment, notably, speech that is defamatory.

In order to be defamatory (and therefore not protected by the First Amendment), the communication must be a false statement of fact made to a third party that harms a person's reputation or ability to earn a living.

The novel question presented in Ms. Martin's class-action is this: Can an article written about an incident that accurately describes an event that did take place be false if the record of that event was later expunged?

In other words, does the truth change into a falsehood over time such that what happened after the fact makes the event described at the time defamatory? And if it does, then does the online news agency have an obligation to take down content that hurts a person's reputation or ability to earn a living if the subsequent events make it clear that the arrest should not have happened or where the prosecutor has, by expunging the record, shown that the person who was arrested for a crime should not continue to be judged on the basis of her arrest for it?

The power of the Internet to continue to perpetuate past events makes rehabilitating one's reputation difficult in cyberspace—and in real life. It is for this reason that states are beginning to limit online access to certain legal records.

For now, the class-action lawsuit will be an uphill battle involving the novel issue of whether truth becomes false and then defamatory. What do you think? Should newspapers or other online outlets be forced to take down descriptions of arrests, mug shots, or other reports that show a person who was arrested but whose record was later expunged? Let us know!

Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.