In New Jersey, two journalists are being prosecuted for accurately reporting on an arrest, just because the record of the arrest was later expunged, reports Reason Magazine: “Last September, Red Bank Green, a news site covering Red Bank, New Jersey, published information from a local police blotter, including a description of an August 31 arrest for simple assault—an arrest that was expunged the following March. When the arrestee complained to Red Bank Green, the site added a note about the expungement but declined to remove the item, since it was still an accurate report of what had happened. As a result of that decision, Red Bank Green reporter Brian Donohue and the site’s publisher, Kenny Katzgrau, face criminal charges.”
“Prosecuting journalists for declining to censor themselves is alarming and blatantly unconstitutional, as is ordering the press to unpublish news reports,” says Seth Stern of Freedom of the Press Foundation. “Any prosecutors who would even think to bring such charges either don’t know the first thing about the Constitution they’re sworn to uphold, or don’t care.”
Donohue and Katzgrau are charged with violating a New Jersey law targeting “any person who reveals to another the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged or sealed.” People who violate that law are declared “disorderly persons” and can be fined $200.
“Publication of truthful information on matters of public significance cannot be punished unless it involves a state interest of the highest order,” which is not present here, says the journalists’ lawyer, Bruce Rosen, in a motion seeking dismissal of the charges. “Moreover, information concerning the arrest was published prior to the expungement, and there is no requirement in law that it be removed from the publisher’s website simply because an expungement [has] taken place….this prosecution is unconstitutional and in fact unfathomable.”
Reason Magazine notes that “The charges against Donohue and Katzgrau are blatantly inconsistent with Supreme Court decisions recognizing that journalists have a First Amendment right to publish truthful, lawfully obtained information. In the 1979 case Smith v. Daily Mail Publishing Company, for example, the Court held that a West Virginia statute making it a crime to publish the names of juvenile offenders was unconstitutional….In the 1989 case Florida Star v. B.J.F., the Supreme Court likewise held that the First Amendment precluded imposing civil liability on a newspaper for publishing a sexual assault victim’s name…A 2011 decision by the New Jersey Supreme Court also seems directly relevant to the charges against Donohue and Katzgrau. In G.D. v. Bernard Kenny and the Hudson County Democratic Organization, the court unanimously rejected a defamation claim based on the publication of an expunged drug conviction [saying] ‘The expungement statute does not transmute a once-true fact into a falsehood; it cannot banish memories.'”
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