Two state judges in Pennsylvania recently ordered newspapers to take down online stories about criminal cases after charges against the defendants were expunged. The newspapers refused, citing the First Amendment’s prohibition against the government restricting the freedom of the press. Last week, the judges relented, and the papers were allowed to keep the stories online in their public archives.
Do not for a moment believe, however, that this was a victory for journalism.
Courts routinely expunge the indictment records of defendants, especially for relatively minor offenses by first-time defendants who stay out of trouble for a specific period of time after their arrest. Prosecutors also can decide to withdraw charges before a case completes trial. However, in some communities, the local newspaper runs stories or notices about those arrests when they happen. One of the duties in my first newspaper job was to compile the nightly “police beat,” collecting and writing up arrest reports from the city, campus and state police in Bloomington, Indiana.
In the past, when old newspapers went into the local landfill and newspapers’ archives were available only through at trip to the paper’s headquarters (or maybe the local library), few people ever ran across these old arrest reports. If you wanted to run a criminal check on someone, say a job applicant or potential tenant, you called up the court and got the arrest and conviction records from there. If a record had been expunged, there’d be no report; the person would come through clean and there’d be no problem.
Today, with newspaper and many court records ubiquitous online, many employers, lenders and landlords skip the potentially expensive court records and go straight to free search engines such as Google to get the background on an applicant. And that’s where some folks are finding those old arrest stories, now often published online. A defense lawyer in one of the Pennsylvania cases told an Associated Press reporter that he’d taken calls from two people who’d complained that an employer or potential employer had discovered notices on the Internet about criminal records that had been expunged. [Link above]
It’s easy for newspapers to dismiss this problem by saying “Hey, the story was accurate when we published it.” But online, publication isn’t a finite action. It’s an ongoing status. Stories that were “published” in the old media sense years ago are “published” anew again each time a new reader calls it up in his or her Web browser.
So a story about an old arrest is not accurate when it is published to a new reader if that story fails to note that the charges have been dismissed and expunged. This is just one more way in which the Internet has changed the environment within which the news business operates. In the analog era, news archives were read rarely, and then typically by researchers looking at many articles in search of historical context. Today, the Internet makes old URLs available to all, including many looking simply for a quick-hit of information.
It’s not just an issue on the police and court beats, either. Many years ago on my theme park website, I wrote about a large local amusement park that was being shopped by its then-owners. The story went viral, and amassed a huge number of in-bound links, so many that for years afterward that URL placed highly in search engine results for the name of the park. As a result, many new readers would discover this old story, read right over the publication date and believe that the park was still up for sale. (A new ownership team soon had taken over that theme park chain and made clear that it had no intent of selling this particular park.)
The park’s PR people asked me to delete the URL, but I didn’t want to purge an article from my site’s archives simply to please a source, nor, frankly, did I want to lose the valuable search engine traffic. But the information at that URL wasn’t accurate. Continuing to publish it to new readers without new context wasn’t good journalism. So I ended up prepending an update to the post and including a link to an “evergreen” URL with the latest discussions about the park.
Ideally, journalists would develop a way to keep every old URL up-to-date with complete and currently accurate information. But given the thousands, and in some cases millions, of old URLs many news organizations keep online, that task seems incomprehensible with current technology and workflows.
Yet we can’t forget that publishing incomplete, inaccurate or misleading information isn’t good journalism. And invoking the First Amendment to avoid correcting our work isn’t a victory for the press. As a profession, we need to change our attitude, collectively, toward what constitutes “publication” and talk more about how we can cultivate more accurate, living publications that present all of our readers the most complete, truthful information.
Even those who stumble upon our old URLs.
