Martin v. Hearst Corporation , 777 F.3d 546 ( 2015 )

13-3315
Martin v. Hearst Corporation
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2014
(Argued: August 18, 2014 Decided: January 28, 2015)
Docket No. 13-3315
LORRAINE MARTIN, Individually and on Behalf of
all Others Similarly Situated,
Plaintiff-Appellant,
-v.-
HEARST CORPORATION, SOUTHERN CONNECTICUT NEWSPAPERS, INC.,
dba DAILY GREENWICH, NEWS 12 INTERACTIVE, INC.,
Defendants-Appellees,
MAIN STREET CONNECT, LLC,
Defendant.
Before: WALKER, JACOBS, and WESLEY, Circuit Judges
Appeal from an August 16, 2013 judgment of the United States District
Court for the District of Connecticut (Shea, J.). Plaintiff-Appellant Lorraine
Martin brought an action alleging libel and other publication-related claims
against media outlets that published accounts of her 2010 arrest. She alleged that
although the accounts were factually true when published, they became false and
defamatory when the charges against her were nolled because, under
Connecticut’s Criminal Records Erasure Statute, when charges against an
individual are nolled or dismissed, that individual’s criminal records are erased
and he is ‚deemed to have never been arrested.‛ The district court granted
Defendants’ motions for summary judgment and dismissed each of Martin’s
claims. We AFFIRM.
RYAN O’NEILL (Mark Sherman, on the brief), The Law Offices of Mark
Sherman, LLC, Stamford, CT, for Plaintiff-Appellant.
JONATHAN R. DONNELLAN (Courtenay O’Connor, on the brief), Hearst
Corporation, New York, NY, for Defendant-Appellee Hearst
Corporation.
DAVID A. SCHULZ (Cameron Stracher, on the brief), Levine Sullivan
Koch & Schulz, New York, NY, for Defendant-Appellee News 12
Interactive.
Eugene Volokh, UCLA School of Law First Amendment Amicus
Brief Clinic, Los Angeles, CA, for Reporters Committee for Freedom of
the Press.
WESLEY, Circuit Judge:
Plaintiff-Appellant Lorraine Martin was arrested in 2010. Local media
outlets published stories accurately reporting the arrest and that Martin was
charged with various drug-related offenses. Although she concedes that the
2
articles were factually true at the time they were published, Martin sued the
publishers for libel and related claims on the theory that it became false and
defamatory to report her arrest once the charges against her were nolled1 and the
records of her arrest and prosecution erased pursuant to Connecticut’s Criminal
Records Erasure Statute, Conn. Gen. Stat. § 54-142a (the ‚Erasure Statute‛). The
Erasure Statute requires that criminal records related to an arrest be destroyed if
the individual is subsequently found not guilty or pardoned or if the charges are
nolled or dismissed. The statute further provides that ‚*a]ny person who shall
have been the subject of such an erasure shall be deemed to have never been
arrested within the meaning of the general statutes with respect to the
proceedings so erased and may so swear under oath.‛ Conn. Gen. Stat. § 54-
142a(e)(3). This appeal requires us to determine whether, because the charges
against her were nolled and she is now ‚deemed to have never been arrested,‛
Martin is entitled to assert various publication-related claims against the
1
A nolle prosequi is a ‚unilateral act by a prosecutor, which ends the pending
proceedings without an acquittal and without placing the defendant in jeopardy.‛ Cislo
v. City of Shelton, 240 Conn. 590, 599 n.9 (1997) (internal quotation marks and citations
omitted); see generally Bernard A. Kosicki, The Function of Nolle Prosequi and Motion to
Dismiss in Connecticut, 36 Conn. B.J. 159 (1962). Under Connecticut law, a nolle prosequi
terminates the prosecution, but the prosecutor may initiate a new action against the
defendant within the statute of limitations. See State v. Smith, 289 Conn. 598, 611 (2008).
A nolle prosequi may not be entered if the accused objects and demands either a trial or
dismissal. Conn. Gen. Stat. § 54-56b.
3
publishers of contemporaneous news accounts of her arrest on the ground that
those accounts are now false or misleading.
We conclude that the Erasure Statute does not render tortious historically
accurate news accounts of an arrest and therefore affirm the district court’s grant
of summary judgment for the Defendants.
BACKGROUND
Martin and her two sons were arrested on August 20, 2010, after police,
who suspected a drug ring was operating out of her house, searched her home
and found marijuana, scales, plastic bags, and drug paraphernalia. Martin and
her sons were charged with various offenses related to the possession of
narcotics and drug paraphernalia.
Local newspapers reported Martin’s arrest. On August 26, 2010, the
Connecticut Post, Stamford Advocate, and Greenwich Time, all owned by Defendant-
Appellee Hearst Corporation, published articles online, stating that Martin had
been ‚arrested and charged with numerous drug violations Aug. 20 after police
received information that a pair of brothers were [sic+ selling marijuana in town.‛
J.A. 26, 28, 30. On August 27, 2010, Defendant-Appellee News 12 Interactive LLC
published an Internet article that reported that Martin was ‚arrested on Aug. 20
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after police say they confiscated 12 grams of marijuana, scales and traces of
cocaine from *her+ house.‛ J.A. 32. Martin concedes that these reports were
accurate at the time they were published. The articles remain available online.
More than a year after the Defendants published the reports of Martin’s
arrest, the State of Connecticut decided not to pursue its case against her, and a
nolle prosequi was entered in January 2012. Because the criminal case against
her was nolled, Martin’s arrest records were erased pursuant to the Erasure
Statute.2
After the case against her was nolled, Martin asked each of the Defendants
to remove the accounts of her arrest from their respective websites. In her view,
once erasure occurred in January, 2011, it became false and defamatory to report
2 The operative sections of the statute provide as follows:
(c)(1) Whenever any charge in a criminal case has been nolled in the
Superior Court, or in the Court of Common Pleas, if at least thirteen
months have elapsed since such nolle, all police and court records and
records of the state’s or prosecuting attorney or the prosecuting grand
juror pertaining to such charge shall be erased . . . .
...
(e)(3) Any person who shall have been the subject of such an erasure shall
be deemed to have never been arrested within the meaning of the general
statutes with respect to the proceedings so erased and may so swear
under oath.
Conn. Gen. Stat. § 54-142a(c)(1).
5
of her arrest because, by operation of the Erasure Statute, she is ‚deemed to have
never been arrested within the meaning of the general statutes with respect to
the proceedings so erased.‛ Conn. Gen. Stat. § 54-142a(e)(3).
When the Defendants refused to remove the stories from their websites,
Martin filed suit in the United States District Court for the District of
Connecticut, asserting causes of action for libel, placing another in a false light
before the public, negligent infliction of emotional distress, and invasion of
privacy by appropriation. The district court (Shea, J.) awarded summary
judgment to the Defendants on all claims. It reasoned that ‚the ‘deemer’
provision of Connecticut’s erasure laws does not alter the historical fact that Ms.
Martin was arrested‛ and that all of Martin’s claims necessarily fail because
‚there is no genuine dispute that the reports of her 2010 arrest in the articles at
issue remain as true now as on the date they were first published.‛ Martin v.
Hearst Corp., No. 3:12cv1023 (MPS), 2013 WL 5310165, at *1 (D. Conn. Aug. 5,
2013).
On appeal to this Court, Martin reiterates her argument that, even though
she was arrested, once erasure occurred in January 2011, it became false and
defamatory to publish statements regarding that arrest.
6
DISCUSSION3
The consequences of a criminal arrest are wide-ranging and long-lasting,
even where an individual is subsequently found not guilty or the charges against
him are dismissed. Employers or landlords might, for example, discriminate
against prospective employees or tenants who have arrest records without
distinguishing those merely arrested from those arrested and subsequently
convicted. To ‚protect individuals who are arrested but not convicted from the
adverse effects of an arrest record,‛ State v. West, 192 Conn. 488, 493 (1984), the
Erasure Statute wipes the slate clean by ‚[p]rohibiting the subsequent use of
records of [a] prior arrest and court proceedings,‛ State v. Morowitz, 200 Conn.
440, 451 (1986), and requiring the state to erase official records of an arrest if the
individual is subsequently found not guilty or pardoned or if the charges against
him are nolled or dismissed.
The Erasure Statute further provides that ‚[a]ny person who shall have
been the subject of such an erasure shall be deemed to have never been arrested
within the meaning of the general statutes with respect to the proceedings so
3
A district court’s award of summary judgment is reviewed de novo. Nora Beverages
Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). Summary judgment is
appropriate where there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
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erased and may so swear under oath.‛ Conn. Gen. Stat. § 54-142a(e)(3). The
statute thus ‚insulat[es] the defendant from the consequences of the prior
prosecution‛ by ensuring that ‚the defendant is no longer considered to have
been arrested for the alleged crimes to which the records pertained‛ and
allowing him to swear so under oath. State v. Apt, 146 Conn. App. 641, 649–50
(Conn. App. Ct. 2013) (alterations and internal quotation marks omitted).
The Historical Truth of Martin’s Arrest
Although Martin concedes that she was, in fact, arrested on August 20,
2010, she argues that it became false to publish statements regarding the arrest
after the charges against her were nolled. She reasons that the Erasure Statute
rendered it factually false to continue to state that she was arrested and that the
Defendants’ once-true reports have become defamatory.
Martin misunderstands the effect of the Erasure Statute. Subsection (e)(3)
deems a person to have never been arrested. Conn. Gen. Stat. § 54-142a(e)(3)
(emphasis added). That is to say, as a matter of legal fiction, the defendant is no
longer considered to have been arrested. Thus, the Erasure Statute bars the
government from relying on a defendant’s erased police, court, or prosecution
records in a later trial, Morowitz, 200 Conn. at 447–48, prohibits courts from
8
relying on the defendant’s historical status as an arrestee to enhance his sentence
for a later offense, Apt, 146 Conn. App. at 648–50, and entitles a defendant to
swear under oath that he has never been arrested, Conn. Gen. Stat. § 54-
142a(e)(3). If the state decides to reverse course and charge a defendant whose
records have been erased, it may not simply reactivate the nolled charges, but
must instead charge the defendant in a new information as if he had not
previously been arrested and charged. State v. Anonymous (1987–1), 11 Conn.
App. 224, 225 & n.1 (Conn. App. Ct. 1987) (per curiam).
‚*W+e are bound to interpret Connecticut law according to Connecticut’s
own interpretive rules.‛ Morenz v. Wilson-Coker, 415 F.3d 230, 236–37 (2d Cir.
2005). Under those rules, ‚*t+he meaning of a statute shall, in the first instance,
be ascertained from the text of the statute itself and its relationship to other
statutes.‛ Conn. Gen. Stat. § 1-2z. It therefore matters that the statute appears in
the Criminal Procedure title of the Connecticut General Statutes (title 54), not the
title dealing with Civil Actions (title 52). The legislature evidently did not intend
to provide a basis for defamation suits.
9
Accordingly, the statute only requires that certain official records be
erased.4 The few enumerated exceptions to the erasure requirements and the
statute’s text confirm that the legislature contemplated erasure only in the
context of the judicial and law enforcement systems.5 As the district court
reasoned, ‚*n+othing in [§ 54-142a] suggests any intent to impose requirements
on persons who work outside courts or law enforcement agencies, and nothing
suggests any intent to mandate the erasure of records held by such persons.‛
Martin, 2013 WL 5310165, at *3.
4 See, e.g., West, 192 Conn. 496–97 (‚hold[ing] that the fingerprints, pictures and
descriptions and other identification data . . . are not among the records whose
disclosure is governed by § 54-142a‛) (internal quotation marks omitted); cf. State v.
Weber, 49 Conn. Supp. 530, 531–32 (Conn. Super. Ct. 2004) (‚The fundamental purpose
of the statute is served by permitting limited disclosure of the records to counsel for the
state in order for it to take reasonable steps to defend itself against Weber’s threatened
action while sealing and segregating the records to prevent disclosure to anyone else.‛).
5 ‚*A+ record or transcript of the proceedings made or prepared by an official court
reporter, assistant court reporter or monitor‛ does not have to be erased, Conn. Gen.
Stat. § 54-142a(h), and a court may order disclosure of ‚erased‛ records ‚to a defendant
in an action for false arrest arising out of the proceedings so erased‛ or ‚to the
prosecuting attorney and defense counsel in connection with any perjury charges which
the prosecutor alleges may have arisen from the testimony elicited during the trial,‛
§ 54-142a(f). Subsections (b) and (c)(1) provide that, in certain kinds of cases, ‚the clerk
or any person charged with the retention and control of‛ ‚police and court records and
records of the state’s or prosecuting attorney . . . pertaining to *the+ charge*s+‛ ‚shall not
disclose to anyone their existence or any information pertaining to any charge so
erased.‛ § 54-142a(b), (c)(1). And, subsection (e) is specifically addressed to ‚*t+he clerk
of the court or any person charged with retention and control of such records in the
records center of the Judicial Department or any law enforcement agency.‛ § 54-
142a(e)(1).
10
In short, the Erasure Statute requires the state to erase certain official
records of an arrest and grants the defendant the legal status of one who has not
been arrested. But the Erasure Statute’s effects end there. The statute creates
legal fictions, but it does not and cannot undo historical facts or convert once-
true facts into falsehoods. Just as the Erasure Statute does not prevent the
government from presenting witness testimony at a later trial that describes the
conduct that underlies an erased arrest, Morowitz, 200 Conn. at 448–49, the
statute does not render historically accurate news accounts of an arrest tortious
merely because the defendant is later deemed as a matter of legal fiction never to
have been arrested.
Connecticut courts confirm our view. In Martin v. Griffin, a Connecticut
Superior Court rejected the notion that ‚the statement that the plaintiff was
arrested is false in its entirety because the arrest ‘was deemed never to have
occurred pursuant to C.G.S. Section 54-142a(e),’‛ No. CV 990586133S, 2000 WL
872464, at *12 (Conn. Super. Ct. June 13, 2000). The Superior Court explained
that the Erasure Statute ‚operates in the legal sphere, not the historical sphere,‛
and it ‚does not, and could not, purport to wipe from the public record the fact
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that certain historical events have taken place.‛ Id. Courts in other states with
analogous statutes are in accord.6
Here, the uncontroverted fact is that Martin was arrested on August 20,
2010, and that the reports of her arrest were true at the time they were published.
Neither the Erasure Statute nor any amount of wishing can undo that historical
truth. The Moving Finger has written and moved on.7 Because there is no
dispute that the articles published by the Defendants accurately report Martin’s
arrest, her various publication-related tort claims necessarily fail. Martin’s
6 See, e.g., G.D. v. Kenny, 15 A.3d 300, 315–16 (N.J. 2011) (‚*T+he expungement statute
does not transmute a once-true fact into a falsehood. It does not require the excision of
records from the historical archives of newspapers or bound volumes of reported
decisions or a personal diary. . . . It is not intended to create an Orwellian scheme
whereby previously public information—long maintained in official records—now
becomes beyond the reach of public discourse on penalty of a defamation action.
Although our expungement statute generally permits a person whose record has been
expunged to misrepresent his past, it does not alter the metaphysical truth of his past,
nor does it impose a regime of silence on those who know the truth.‛); Bahr v. Statesman
Journal Co., 624 P.2d 664, 666 (Or. Ct. App. 1981) (‚The *expungement+ statute does not,
however, impose any duty on members of the public who are aware of the conviction to
pretend that it does not exist. In other words, the statute authorizes certain persons to
misrepresent their own past. It does not make that representation true.‛); Rzeznik v.
Chief of Police of Southhampton, 373 N.E.2d 1128, 1133 (Mass. 1978) (‚There is nothing in
the statute or the legislative history to suggest that, once the fact of a conviction is
sealed, it becomes nonexistent, and hence untrue for the purposes of the common law of
defamation.‛).
7 ‚The Moving Finger writes; and, having writ,
Moves on: nor all thy Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all thy Tears wash out a Word of it.‛ Rubáiyát of Omar Khayyám, stanza 71 (Edward
Fitzgerald trans., 4th ed. 1879).
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claims for libel and placing another in a false light fail because the articles do not
contain falsehoods. Her claim for negligent infliction of emotional distress fails
because there is nothing negligent about publishing a true and newsworthy
article. See Finnelli v. Tepfer, No. CV075011659S, 2009 WL 1424688, at *7 (Conn.
Super. Ct. Apr. 24, 2009). And her claim for invasion of privacy by appropriation
fails because a newspaper does not improperly appropriate an individual’s name
or likeness merely by publishing an article that brings the individual’s activities
before the public. See Restatement (Second) of Torts § 652C cmt. d.
Defamation by Implication
Martin next argues that even if the Erasure Statute does not make the
statements about her arrest technically false, the reports of her arrest are
nonetheless defamatory because they only tell part of the story. The articles
report that she was arrested and charged without mentioning that the criminal
case against her was eventually nolled.
It is axiomatic, of course, that truth is an absolute defense to a defamation
claim. But in certain circumstances even a technically true statement can be so
constructed as to carry a false and defamatory meaning by implication or
innuendo. Where a publication implies something false and defamatory by
13
omitting or strategically juxtaposing key facts, the publication may be actionable
even though all of the individual statements are literally true when considered in
isolation. See Strada v. Conn. Newspapers, Inc., 193 Conn. 313, 322–23 (1984); see
also Robert D. Sack, Sack on Defamation § 3:8 (4th ed. 2010).
The classic example of defamation by implication is Memphis Publishing Co.
v. Nichols, 569 S.W.2d 412 (Tenn. 1978), in which a newspaper reported that a
woman, upon arriving at the home of another woman and finding her own
husband there ‚first fired a shot at her husband and then at [the other woman],
striking her in the arm.‛ Id. at 414. The article neglected to mention, however,
the additional facts that several neighbors and the husband of the other woman
were also present, that all were sitting together in the living room talking, and
that the shooting was accidental. Even though the statements in the article were
all technically true, the article falsely implied that the husband and the other
woman had been shot at because they were caught in an adulterous affair and
had become targets of an enraged wife—a meaning both false and defamatory.
Id. at 419.
The news reports at issue in this case, however, do not imply any fact
about Martin that is not true. They simply state that she was arrested and
14
criminally charged, both of which Martin admits are true. Reasonable readers
understand that some people who are arrested are guilty and that others are not.
Reasonable readers also know that in some cases individuals who are arrested
will eventually have charges against them dropped. Reporting Martin’s arrest
without an update may not be as complete a story as Martin would like, but it
implies nothing false about her. Accordingly, we reject Martin’s contention that
the reports of her arrest are defamatory because they fail to mention that the case
against her was eventually nolled.
CONCLUSION
We have considered all of Martin’s arguments on appeal and find them to
be without merit. For the foregoing reasons, the judgment of the district court
granting summary judgment for the Defendants is AFFIRMED.
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