Forget Me Not

A federal court considers whether we have a right to tell the truth.

Woman being arrested.
This never happened.

Photo by Kzenon/Shutterstock.

First Amendment cases often deal with the fringes of free speech, forcing courts to scrutinize expression that might, on first glance, seem pretty worthless. In the last few years, the Supreme Court has constructed constitutional protections for dogfighting videos, funeral protests, violent video games, and outright lies. This month, however, the 2nd U.S. Circuit Court of Appeals was forced to confront a First Amendment question that most of us had assumed was settled decades ago: Does the Constitution give us a right to tell the truth?

Here are basic facts of the 2nd Circuit case: In August 2010, Lorraine Martin was arrested in Connecticut, along with her two adult sons, after police found marijuana and paraphernalia in her house. In January 2012, the state dropped its case against Martin and scrubbed her record in accordance with the state’s “erasure” statute. Soon after, Martin demanded that several news organizations remove online stories about her drug charges published after her arrest. When they refused, Martin sued them in federal court.

In her lawsuit, Martin tosses out several theories explaining why she should be able to forcibly censor articles about her. But they all boil down to the idea that once her criminal record was erased, stories describing her arrest became “false and defamatory.” In other words, articles about Martin’s criminal conduct may have been true when they were published in 2010. But once Martin’s record was expunged, these articles became factually untrue—that is, lies.

To support her case, Martin cites a portion of the Connecticut statute that states that after her record was expunged, she “shall be deemed to have never been arrested.” (Under her theory, the legal fiction the statute creates should apply to news outlets; as First Amendment scholar Eugene Volokh notes in his amicus brief, this reading of the law is rather strained.) But at the heart of her case is a theory that emerges not from any Connecticut law but from the European Court of Justice—the “right to be forgotten.” Under this right, Europeans can petition search engines to strip stories about their embarrassing pasts from search results. Since the ECJ implemented this right in May, Google has granted a majority of “right to be forgotten” requests, meaning at least 100,000 articles have already been censored.

Admittedly, the question of whether Google’s search results qualify as protected speech is thorny and contentious. But Martin’s case takes the basic concept of the right to be forgotten and expands it far beyond any search engine—taking it, in the process, to its logical (and perhaps inevitable) conclusion. If this right permits citizens to hide search results for news stories, why shouldn’t it permit them to hide the stories themselves? If privacy outweighs free speech on Google, why shouldn’t it outweigh free speech across the Internet?

Given the existence of the First Amendment, the answer to this question probably seems obvious. But in reality, the debate of speech versus privacy was a very live issue at the Supreme Court for years. The issue was seemingly settled in a famous 1979 case called Smith v. Daily Mail Publishing Co., which dealt with two newspapers that published articles containing the name of a minor who was arrested for murder. Although the papers did not misreport the facts, they were soon indicted simply for publishing the name of a juvenile offender, then forbidden under West Virginia law. The Supreme Court unanimously reversed the sanctions, holding that “if a newspaper lawfully obtains truthful information about a matter of public significance,” it cannot be punished “absent a need to further a state interest of the highest order.”

That declaration—now known as the Daily Mail principle—might appear unambiguous, especially coming on the heels of two cases that held that news outlets cannot be barred from revealing a picture of an 11-year-old offender or the name of a 17-year-old victim of rape and murder. But a decade after Daily Mail, a similar case arose that shattered its predecessor’s unanimous endorsement of press freedom. The case, Florida Star v. B.J.F., involved a newspaper that learned the name of a sexual assault victim after the police accidentally revealed it. When the paper printed the victim’s name, she sued it for violating a state law that forbade any publication from identifying the victim of a sexual offense.

Since criminal activity is generally considered to be a “matter of public significance,” you might think the Florida Star case falls squarely within the Daily Mail principle. But surprisingly, the case fractured the court and revived the supposedly moribund notion that individual privacy trumps freedom of the press. Although six members of the court reaffirmed the Daily Mail principle, three dissenters veered in a new direction, deciding that maybe “truthful information about a matter of public significance” isn’t so important, after all. According to Justice Byron White, joined by Chief Justice William Rehnquist and Justice Sandra Day O’Connor, the press may be forced to “respect simple standards of decency”—that is, barred by law from reporting the name of the victim of a heinous crime. And if they violate this “decency” by publishing the name of a victim, she or he can sue for damages without running afoul of the First Amendment.

There are two problems with this argument. The first is that it would seem to violate the very core of freedom of speech and freedom of the press, subjecting newspapers to liability simply for printing the news. But the second problem, which lurks just under the surface of Martin’s suit, is that there’s really no clear limiting principle. The whole point of the Daily Mail approach is that it puts truthful information on a matter of public concern on a higher plane of protection than other forms of speech. (In fact, the “state interest of the highest order” standard may be even more stringent than strict scrutiny.) White and his cohorts would bring that paradigm tumbling down, opening up accurate news reports to lawsuits from disgruntled lawbreakers and victims alike.

In most of the world, that kind of censorship regime would present no problem at all—plenty of countries impose gag orders forbidding the media from naming victims, accusers, witnesses, and alleged lawbreakers. And that’s why, in most of the world, the right to be forgotten is also no big deal: If you can bar a newspaper from printing your name after you commit a crime, there’s no reason why you shouldn’t also be able to bar a search engine (or, perhaps, a website) from displaying your name years later. Martin’s suit represented an attempt to import this legal logic into U.S. courts.

Ultimately, the 2nd Circuit ruled against Martin, vindicating Volokh’s argument. But the court did so on narrow grounds, holding that she had misread Connecticut’s statute and thus avoiding the meatier First Amendment questions at stake. Next time it might not be so easy. Alabama is currently contemplating a bill that would force websites to remove mug shots of arrestees who were later acquitted, and California has already passed a law that allows minors to compel websites to delete any content they posted when they were under 18. The right to be forgotten may have started as a European phenomenon, but it’s already quietly creeping into our legal code with minimal hue and cry.

The courts that confront these statutes—and similar ones that will undoubtedly crop up around the country—must eventually tackle the First Amendment issue dead on. In doing so, they’ll have to decide whether the Daily Mail principle can survive in the Internet age. Already this century, we’ve learned that a vast array of hateful, disgusting, and trivial speech finds shelter in the First Amendment. Soon we may also learn the answer to a more fundamental question: whether we have the freedom to speak the truth.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.