By Papagianis, Andrea
News Media and the Law , Vol. 36, No. 2
The public's right to know up against a person's right to a second chance
Legislators in several states are attempting to decide what's more important - the public's right to know or a convicted criminal's right to a second chance?
Advocates across the country are urging passage of protections they hope would give ex-offenders a better shot at a new life by erasing their criminal pasts. And while these efforts have failed before, a handful of bills expanding the type of records sealed recently gained traction in New York, New Mexico and Illinois.
The bills are facing strong opposition from media advocates, businesses that rely on criminal background checks before hiring employees and law enforcement agencies holding the records.
Across the country every day, journalists comb through prosecution and court records. Access to criminal records is essential to gain the full picture for many crime stories, said Todd Lighty, an investigative reporter with the Chicago Tribune.
"When does it end?," Lighty said about the continuing legislative attempts to seal certain criminal records. "It's like an eclipse where more and more of the sunlight goes away."
Criminalizing publication of sealed records
A bill before the New York State Assembly would criminalize the publication of sealed records, regardless of how the information was gathered or who published them.
As the proposed legislation reads, any publication regarding the arrest, detention or conviction of an individual whose record is sealed shall be considered a class A misdemeanor - placing publication of sealed records (even if lawfully obtained) - in the same offense classification as crimes such as prostitution, cemetery desecration in the third degree and sexual abuse in the third degree.
"Any such attempt to conceal criminal records - to the extent permitted - would disallow true and accurate reporting about newsworthy matters of public concern," said Michael Grygiel, a media lawyer in Albany, N. Y.
Time restrictions proposed in the sealing bill make it particularly unworkable, opponents say. Because information related to criminal convictions would be readily available to the public years before it could be sealed - five years for misdemeanors and eight for felonies under the proposed rule - news organizations, private databases and Internet providers would have to purge such information from their electronic or physical archives for all time or face severe sanctions for the inadvertent publication of information that, previously public, became sealed merely by the passage of time.
Such databases are often maintained by multiple agencies or obtained through individuals and private companies who perform background checks for businesses on potential employees.
In 2001, the U.S. Supreme Court held in Bartnicki v. Vopper that media defendants could not be held liable for publishing truthful information of significant public interest or concern and lawfully obtained from a third party, even if that third party violated the law.
The high court held that the First Amendment protected Frederick Vopper, an on-air personality for WILK Radio in Pennsylvania, and other media defendants, for airing an illegally intercepted phone conversation concerning a proposed teachers strike, so long as they did not participate in the unlawful interception of the call.
"A stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern," U.S. Supreme Court Justice John P. Stevens wrote in the court's opinion.
Under the proposed New York bill, a person would be entitled to $500 for each publication of their sealed records and with actual damages for injury caused by the disclosure of the information.
"The purpose of this bill is merely to get the system to be functioning the way the system is supposed to function," said Assemblyman Daniel O'Donnell, who authored the bill. …