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In the court of public opinion

 

An esteemed criminal defense attorney once told Lawyers Weekly that some of the best work he’s done for clients has been on the front end of investigations, preventing arrests from happening in the first place.

Joe Cheshire of Raleigh said during a 2012 interview that innocent clients have walked into his office, under investigation or accused of crimes. In some cases, Cheshire has been able to work through the facts, navigate the system, and make sure that charges either were never filed or that they “went away without anyone knowing about it.”

“Those kinds of things, they’re really your greatest joys, when someone who’s accused of something and they can have their life ruined and you manage to make that go away without it happening,” Cheshire said.

But in this digital age of social media, Google, and the entire internet—where nothing goes to die on the vine—cutting off allegations at the pass becomes increasingly difficult. And even in cases where defendants are exonerated by a court of law, they remain guilty in the court of public opinion.

The wheels of Twitter turn quickly

After arrest, many criminal defendants will soon see local news reports—often accompanied by their mugshot—detailing the accusations from the government’s perspective. Nearly instantly, these reports are indexed into our favorite search engines where anyone with a web connection can read all about who we are, according to authorities. Reporters tweet the information, which is retweeted and otherwise shared from platform to platform.

This is considered fair play by many, since the information is publicly available and deemed newsworthy. In many cases, arrests lead to convictions and collateral consequences greater than those experienced back when booking photos appeared in the paper, but faded from the public’s memory as the publication made its way into a landfill or became fish wrap or bird cage liner.

Other arrests, however, do not lead to convictions. Every day, defendants are acquitted and cases are dismissed. Unfortunately for those defendants, while the criminal charges disappear (except in official arrest records), the internet footprint remains alive and well, ready to stamp out any hope of becoming whole again.

South Carolina appellate defender Robert Dudek told Lawyers Weekly that in today’s climate, mere accusations can ruin lives.

Greg Doucette, a criminal defense attorney in Durham, has seen the technological damage firsthand. He believes that usually, very little can be done to remedy the situation.

“A student at [a large university in North Carolina] dealt with this a few years ago,” Doucette wrote to Lawyers Weekly. “Charged with murder in a case of mistaken identity, case dismissed, charge expunged, but Google still says he’s a killer.”

Search (and destroy) engines

So what remedies are available for the accused but exonerated? It depends on whom you ask. Constance Anastopoulo, a professor at Charleston School of Law explained that a defamation suit is usually a non-starter.

“Saying that someone has been charged for X in the newspaper or on the internet is not defamatory,” Anastopoulo wrote in an email. “If the underlying accusation is false … then the defamation claims go to the accuser, not the publisher who simply reports [the allegations].”

Jay Bender, a media law attorney with Baker Ravenel Bender in Columbia, South Carolina, said that unlike the days when one would have to scour microfilm for old news items, information is readily available now. And while arrest reports may be unfortunate, the information is newsworthy and the process is fair.

“The historical record, so-and-so was arrested, is accurate,” he said.

Minc Law, based in Orange, Ohio, claims to be the only firm in the nation that specializes in online defamation. Aaron Minc agreed that crime-blotter entries are rarely libelous, but says that his firm handles all sorts of “online reputation and brand protection” issues, including unflattering news stories.

“While everybody loves [the internet] and it’s fantastic, there is a small dark side that it’s created to the free flow of information,” he said. “It’s really weaponized some of these tools that we love for the destruction of people.”

Minc acknowledged the newsworthiness of crime stories, but said that they don’t serve the public interest like they once did.

“Does something that happened 20 years ago still need to show up No. 1 when you Google someone?” Minc said. “Especially if they were found innocent, it was expunged, or they were rehabilitated?”

More honey, less badger

Absent the bargaining power of a defamation claim, what grounds might an attorney have to dictate the removal of a news article that her client doesn’t like? According to Bender, who also holds a degree in journalism, not many. For the media, First Amendment protections are strong.

“The ones who are least likely to be successful are the ones where the lawyer writes a very threatening letter,” Bender said. “Newspaper people are contrarians. If you get somebody threatening you, the response is likely to be, ‘Hell will freeze over first.’ …you get more flies with honey than with vinegar.”

Probably not coincidentally, that approach has served Minc’s firm well.  

“We never take an aggressive approach,” he said. “You can really shoot yourself in your foot if you’re not careful. Anyone with a bar license and a pulse can send out a threatening cease and desist letter, which may accomplish the exact opposite of what you aim to accomplish.”  

Minc’s experience is that some media outlets will remove stories online, while others will update them or de-index the search results.

“You really have no legal basis to stand on … so we try to work with papers … what are the merits of why, editorially, something should be removed or remedied in some sort of way?” Minc said.

Brian Tolley, executive editor of The State in Columbia, confirmed that most newspapers do not take down accurately reported arrest reports.

“We consider each case on an individual basis, but in general, we do not remove published articles,” he wrote in an email. “We do offer to post updates of case outcomes at the top of past articles upon confirmation of conclusion.”

In other words, a court order dismissing or declining to prosecute a case will earn an online asterisk, but not a cleansing.

The Charlotte Observer has a similar policy. Executive editor Sherry Chisenhall said that her paper gets monthly requests, often from attorneys, to remove stories or, alternatively, to hide them from search engines. The Observer does not “unpublish journalism,” however, she told Lawyers Weekly in an email.

“We will always correct errors of fact, and we will update the story with an editor’s note that charges were dismissed, or a person was acquitted of charges,” Chisenhall wrote.

Still, Minc insists that through diplomacy, his firm has been successful in protecting and restoring the internet reputation of Average Joes and high-profile citizens.

“Journalistic ethics clearly dictate that things should be updated—that lasting harm should be taken into consideration, as well as the continued newsworthiness of the story all that stuff,” he said. “And what we’ve come to see in the last few years is that news organizations are finally starting to come around and really grapple with it, because it’s new and fresh for them, too.”

A right to be forgotten

But one major news outlet, cleveland.com, has rolled out an initiative it calls the “right to be forgotten.” The site’s editor, Chris Quinn, wrote in a blog that the process is the result of feedback from individuals who are “blocked from improving their lives” because of Google searches that reveal cleveland.com stories and mug shots, sometimes years old, about minor crimes.

While elected and public officials and celebrities will not benefit from this program, most others who have been accused of minor, nonviolent crimes and have successfully petitioned the court for expungement, can have their names removed from stories and, as a result, from Google searches.

The site has also decided to “greatly curtail” its use of mug shots and suspects’ names in minor crimes.

“Because our platform at cleveland.com is so huge, our stories often are the first to appear in Google searches,” Quinn wrote. “Thus, our stories about mistakes made long ago become the first thing people see when they search on people’s names, causing them no end of distress.”

We live in a culture where crime is newsworthy, the internet is forever, and stories on the internet are usually assumed to be true, even if a subsequent, unpublished court order says it is not.

Minc, the online reputation attorney in Ohio, cautions attorneys against trying to strong arm the media where it has simply reported information as supplied by the state. But he vows to keep fighting the fight. With a smile on his face and a cordial tone, of course.

“It’s one thing if an old arrest can be dug up, but another if it’s the first thing people learn about you,” Minc said. “Sometimes no one will look at you the same again—you’re a pariah of society regardless of whether you’re proven innocent. It’s terrible.”

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