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What is the value of an expungement?

A local attorney is pushing expungement in new directions. Along with what has become the standard language of an expungement order, he included provisions requiring the local newspaper and a student-run newspaper to remove articles that named his clients.

Unfortunately, it appears the judges who signed these orders thought they were just the standard expungements and didn’t read every word. The attorney did not inform the judges of the additional provisions. One of the judges has vacated his previously entered orders. The other will likely do so shortly.

The story hasn’t quite gone national, but it is certainly regional. Here is the original Centre Daily Times article on the brouhaha. And the Philadelphia Inquirer picking it up. I also understand it is out on the AP wire from both sources, so I’d expect to hear about it on The Colbert Report within the week.

Whatever your views on whether the attorney was right or wrong in what he asked for or how he handled getting the orders signed, you have to recognize his point: in the age of Google, what is the value of an expungement if anyone can search your name and find the information that was meant to be deleted from the public record?

It is a thorny issue. Tied up in it are the competing interests of privacy, the right of the public to information (which the press keep confusing with their own First Amendment privileges), and the interest of the courts in supporting agreements between prosecutors and defendants that resolve cases without time-consuming court involvement.

When two fundamental rights such as these meet, which one should prevail? Does the individual’s right trump that of the community? I don’t think there is an easy answer. I certainly don’t have one. As a criminal defense attorney, I want the best outcome for my clients. As a civil libertarian and a private citizen, I cringe at any interference by the state in the operation of the press.

At the end of the day, I think that local attorney is correct: this is an issue our legislature needs to address. They are the people’s representatives, and the public should determine how it wants to be treated.

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