Don’t Bother Asking. We Won’t Yank Stories From Our Website

Wednesday, June 1, 2022

Page 8

EDITORIAL

Don’t Bother Asking. We Won’t Yank Stories From Our Website

HE ANSWER IS: “NO!”

The question is: “Will you please remove from your online archive a news story on a Court of Appeal opinion that mentions me and is causing embarrassment?”

Embarrassment to the request-maker emanating from a report reposited on the Internet reflecting what he or she did, as derived from a public document, is frequently supposed by the sender to justify, if not compel, a self-censorship of the account. If, for example, a person whose conviction for extortion was affirmed in an appellate opinion and, now freed from prison, is unable to land a job because potential employers Google the person’s name and spot our report on the opinion, this newspaper is blamed for the unemployment, rather than the person who committed the crime accepting responsibility for a consequence of the wrongdoing.

What is overlooked by those requesting or demanding an expungement of news stories is that the opinions that were reported on, whether published in the Official Reports or not, remain available to the public; that the function of newspapers is to report on public events, not to conceal them; and that what is being sought is a re-writing of history, the engaging in a fantasy that what happened didn’t.

T USED TO BE THAT CLIPPINGS of past stories were placed by newspapers in folders housed in filing cabinets. There were rows of cabinets in what were termed “morgues.” Some newspapers made those morgues—repositories of history—available for public inspection. Requests were not heard that stories be expelled from the folders because they might cause current embarrassment.

Libraries are a source for old stories, in “hard copy” form—that is, the actual newspapers—and on microfilm. We doubt that that libraries are called upon to take scissors to stored newspapers to snip out stories that persons whose conduct was reported upon find distasteful or that they are beseeched to snip frames from microfilms.

Yet increasingly, there come entreaties and commands that stories be wiped off newspaper websites or be “deindexed” (through a command in metatags) so that search engines won’t find them.

Out of a conviction that acquiescence would an act of irresponsibility, this newspaper simply won’t oblige.

Today’s news stories capture today’s events. What has been captured should not be suppressed by newspapers simply because the subject of the stories cringes at what was revealed. Contemporaneous recordings of events are of potential value to historians of the future, even if the happenings appear at the time to lack lasting significance.

Online stories containing inaccuracies surely must be corrected. That’s not in issue. The question here is whether accurate accounts on the Internet should be zapped by newspapers out of pity for someone who came into public view in connection with a matter that was reported upon, and now desires that it all be forgotten.

Our view is that efforts should not be made to repress truth that has already publicly surfaced.

HAT DOESN’T MEAN THAT any and all information that is come upon by journalists can fairly be reported. Just as trial courts exclude matter under Evidence Code §352 where potential prejudice outweighs the probative value, journalists often desist from reporting matters after examining the equities.

Lawyers seeking online suppression of news stories that appeared in print sometimes invoke the Society of Professional Journalism (“SPJ”) Code of Ethics standards that appear under the heading of “Minimize Harm.”

While the guidelines are, of course, binding on no one, they do set forth principles as to which there is general agreement within the journalistic community, including:

“Balance the public’s need for information against potential harm or discomfort. Pursuit of the news is not a license for arrogance or undue intrusiveness.

“Show compassion for those who may be affected by news coverage. Use heightened sensitivity when dealing with juveniles, victims of sex crimes, and sources or subjects who are inexperienced or unable to give consent….

“Recognize that legal access to information differs from an ethical justification to publish or broadcast.”

These are considerations that should be taken into account in determining, in the first instance, whether to report something. Once a matter is publicly disclosed, however, it is “out of the bag,” in public domain, and the factors pointed to by the SPJ have, as we see it, no continuing relevance.

And the guidelines recognize that, saying:

“Consider the long-term implications of the extended reach and permanence of publication. Provide updated and more complete information as appropriate.”

It refers to “permanence” of publication.

A few courts of appeal have recently filed opinions mentioning parties by name, received belated requests for anonymity, vacated their original opinions, and issued new opinions with the parties identified with an initial for a last name—even though the parties publicly litigated in their true names (and their full names remain in the records). To us, this is bizarre, and we do not intend to imitate such tomfoolery.

UR STANCE, PERHAPS SEEMINGLY a hard-nosed one, does not reflect a lack of compassion toward persons adversely affected by the articles they want removed but, rather, stems from our overriding commitment to the notion that information, once made public by a newspaper, should not later be concealed by it. While a newspaper has no obligation to maintain a website or post articles to it, or to keep them posted indefinitely, the idea of taking affirmative steps to hide that which it has been revealed should be anathema to any news publication.

An example: Our heart did go out to a lawyer who, in a Dec. 15, 2020 letter, sought removal of a 2009 article reporting on a Court of Appeal opinion that had just been ordered published affirming a default malpractice judgment against her. She told us that “the fact that this article appears in any Internet search of my name has psychologically crippled me,” declaring in a follow-up email on Jan. 4, 2021:

“To emphasize the seriousness & sincerity of my request, I am offering you my time to work in your office—free of charge—on any project of your choosing—a kind of quid pro quo?? In sum, I am desperate to resolve this matter….”

But the fact remains that Googling her name will bring up a link to the case our reporter wrote about; the lawyer did fail to respond to substitute service which the Court of Appeal declared to be adequate; and the case is a significant one. The salient point, however, is that the lawyer sought a blotting out of a recitation of a governmental action—that is, was asking for a newspaper’s hiding of facts that are matters of public record. That request could not conscionably have been accommodated.

E AGREE, WITH THE VIEWS admirably expressed by Nicholas Goldberg, an associate editor of the Los Angeles Times, in a Feb. 7, 2021 column titled, “Newspapers shouldn’t delete old crime stories.” He wrote:

In late January, the Boston Globe…announced a new “Fresh Start” initiative, under which it will allow people to apply to have stories about their “past embarrassments, mistakes or minor crimes” updated, anonymized or in some cases delisted from Google search results. The newspaper explained that the value of giving someone a new chance in life “often outweighs the historic value of keeping a story widely accessible long after an incident occurred.”

I think that’s the wrong solution.

It’s not that I don’t sympathize with the subjects of these stories. It is long past time for society to change the way it views people who have had run-ins with the criminal justice system. A person convicted of selling a small amount of drugs, for instance, should not be considered beyond redemption or denied jobs or apartments for the rest of his or her life. This has been a problem especially for people of color.

Newspapers absolutely should play a part in ameliorating the situation by reconsidering, going forward, what they report in the paper, how they play and contextualize crime stories, what language they use and how they evaluate facts they get from police.

But they shouldn’t muck around with history. Trying to rewrite the past, or even trying to hide from view what has already been reported, is almost always a mistake.

It may sound self-important, but what appears in the newspaper really is the first draft of history. Of course it is sometimes flawed, sometimes incomplete, sometimes even unfair, but it’s the best record we have. We’re opening a dangerous door if we agree to go back and alter an old article because we no longer think it’s newsworthy or we wish we hadn’t said what we said or we have a different sense now of what’s right or wrong.

Unpublishing is a violation of our obligation to readers, and to transparency. And it doesn’t solve the underlying problem, which is society’s unforgiving attitude. It merely makes information in the public record less accessible.

And where does such revisionism end? Once you’re changing old stories, surely there will be a temptation to go beyond crime stories, to protect people from other negative coverage they find embarrassing.

Goldberg remarked that he was “not saying there could never be a case where, on balance, it might be justified” for a newspaper to lift a story from its website in response to a plea. He cited the example of “a life or death situation.” While we know of no such actual circumstance having arisen, we cannot dispute that such a scenario would compel a removal while the crisis was in progress.

His other example was an instance where a removal “might be justified” was “a legal order to do so.” Plainly, such an action would not be justified where the order constituted—as most any such order would—a facially unconstitutional prior restraint.

Some publications, we regret to observe, are accommodating requests for deletions of articles from websites or the “de-indexing” of them. That’s their prerogative. In our view, they’re wrong to do so.