Texas Judges Continue To Turn Expungement Orders Into 'Right To Be Forgotten' Requests

Free Speech

from the careful:-that's-the-Constitution-you're-screwing-with dept

It appears the state of Texas is offering a limited “right to be forgotten” in county courts. A few years back, the state appeals court had to get involved and remind the county no such right exists in the Texas, much less the rest of the states Texas seems to be embarrassed to be associated with. At the center of the case was an expungement order for an attorney accused of forging other attorneys’ signatures on court filings.

While his case may have been expunged, expungement only covers the official record. This would remove info from government databases. Texas law also provides for the removal of info from certain sites reliant on public records (mugshot sites, background check services), but the law does not go so far as to demand news sites and search engines purge themselves of articles related to now-expunged criminal acts.

A lower court decided to drag Google into this, demanding it de-index anything covering the expunged crime. Google did not comply and the state appeals court reversed the lower court’s order, finding it not so much a violation of the First Amendment (which it is), but that it skirted due process by not allowing Google and the sites being de-indexed to argue against the removal order in court.

Eugene Volokh has again tracked down a similar — and similarly wrong — order from a Texas county court.

Until a week ago, Houston’s ABC-13 TV station, KTRK, had the following story on its web site (I quote the July 13, 2017 version, which had been updated from its original 2016 story):

An Alief ISD teacher is no longer in the classroom after he was arrested on allegations of domestic violence.

Damon Barone is charged with assault-family violence. According to a statement from Alief ISD, Barone was a teacher at Mahanay Elementary School but has not been on campus since April 4. He’s currently on administrative leave and the district says “he will not return at any point.”

Alief ISD officials say the incident did not happen on school property or at a school event.

The charges have since been dropped, but Barone remains no longer employed with the school district.

About a week ago, that story disappeared from the site. And that disappearance seems to be linked to a Houston court’s June 26 expunction order (signed by Judge Michael Landrum), which purports to cover KTRK.

The order [PDF] is hosted at the Lumen database. This lives on, but KTRK’s story does not. KTRK was under no legal obligation to remove the story. State law does not require the deletion of news stories following an expungement order. To put things generously, the judge in this case appears to have misinterpreted the law. KTRK has complied with an order it didn’t need to and now has played its small part in erecting a Texas-based “right to be forgotten.” Google most likely did not de-index the site in response to this request, but with KTRK deleting its coverage, the de-indexing will occur anyway.

As Volokh points out, this isn’t the way the law reads and it certainly isn’t the way the law is supposed to work. It could be the judge didn’t read the list of potential targets closely and allowed Barone to nuke KTRK’s story along with the sealing/removal of criminal records. Whatever the case is, those seeking to abuse a system to erase their criminal history will be encouraged by Texas courts and their inability to restrain expungement requests to government agencies and databases.

What I do know, assuming the order is authentic, is that a Houston court order purports to institute a “right to be forgotten” as to this particular news story. And this is at least the second such case in the last two years: The first case that I know of is the even more troubling Derek Collier Thorworth matter, where an expungement order seemed to require the media to remove a story about a county constable who had pleaded guilty to abusing a prisoner, and where the constable demanded that a TV station indeed do so, based on the order. […] Some might think that’s a sound approach, but it’s not authorized by Texas law and not consistent with the First Amendment.

This won’t be abused nearly as much as the fake libel lawsuit scam being perpetrated in courts around the country. And it won’t scale like regular old DMCA abuse that tends to backfire on those attempting to use Google takedown requests to clean up their vanity searches. But it will let people with expungement orders believe they can eliminate content from the internet at large. And if judges aren’t careful, they’ll sign off on orders letting them do exactly that.

Filed Under: damon barone, eugene volokh, expungement, free speech, injunctions, right to be forgotten, texas