Expungement law has made great strides over the past two decades, with state-level reforms broadening the types of criminal records eligible for expungement. Further, expungement has been extended beyond arrestees to those who have been convicted, thereby promising to alleviate some of the burdens of reentry. Nevertheless, expungement remedies only touch officially held information or public data possessed by different branches of government. This means that private actors, if they possess the information, are beyond the reach of expungement law. Such actors, whether individuals, background check companies, newspapers, or other firms, enjoy the ability to continue to hold and use such information. This results in a whack-a-mole problem for the successful expungement petitioner who has achieved the relief that the state allows, only to see its efficacy thwarted by private activity with the same information. Recently, one private actor, newspapers, has begun to set up processes that resemble formal expungement. Newspaper editors have responded to the limits of formal expungement by constructing their own procedures for evaluating whether to erase, seal, or alter information that is damaging to the reputation of those who have encountered the criminal justice system. This development has occurred on the heels of the right to be forgotten movement in Europe, which has gained little traction in the United States. This Essay contextualizes the phenomenon of newspaper expungement, situating it within a larger legal backdrop, before describing the stated activities and aspirations of some of the newspapers themselves. It concludes by charting how such practices relate to broader critiques and goals of criminal justice reform.
Associate Professor of Law, Seton Hall University School of Law. I would like to thank the Honorable Stephanos Bibas for encouraging me to study expungement from various angles, my former colleagues at Community Legal Services of Philadelphia for introducing me to expungement law, and participants at CrimFest 2020 for providing feedback on the ideas that generated this article. Thank you to Hayley Mclaughlin, my former student, for research assistance. I would also like to thank my wife, Katherine, for her continuous support, and my children, Elizabeth, Eleanor, George, John, and Lucy, for their inspiring curiosity, endless questions, sense of wonder, and zealous love for life.
Copyright 2021 by Brian M. Murray
Cite as: Brian M. Murray, Newspaper Expungement, 116 Nw. U. L. Rev. Online 68 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1311&context=nulr_online&preview_mode=1&z=1625074269.