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Legal fiction: Is it defamation to publicize an expunged conviction?

Photo Credit: Cliffview Pilot

If your criminal record is wiped clean under the law, did your conviction ever happen? That question, arising from a campaign mudfight between mayors Brian Stack of Union City and Sal Vega of West New York over a state Senate seat, is in the robed laps of the New Jersey Supreme Court.

Chief Justice Stuart Rabner

We can thank the Internet — and to a lesser degree, old-fashioned Hudson County politics — for this one. The impending decision will speak volumes about how we operate in a legal system that no longer has file folders or drawers.

The state’s highest court will decide a major question: Is someone who publicizes a conviction after its been expunged guilty of defamation?

The justices were petitioned after an appeals court ruled that whoever spreads such information is innocent.

The Hudson County Democratic Organization was within its First Amendment rights, the appeals panel said, when it circulated flyers during the 2007 state Senate primary campaign that said a former aide to Brian Stack (who is also Union City’s mayor) was convicted of a drug charge.

“It’s the company you keep. And the sleazy crowd Brian Stack surrounds himself with says a lot about who Stack is. Coke dealers and ex-cons,” one flyer says. “[The plaintiff in the libel case] is also a drug dealer who went to jail for five years for selling coke near a public school.”

It’s true. But the aide also entered a pre-trial intervention program, kept his nose clean, and had his record expunged — which, in legal terms, means it never happened. In doing so, he avoided a possible five-year prison sentence for carrying drugs intended for distribution.

The aide went to court, saying he was defamed by the HCDO, Chief Executive Officer and former state Sen. Bernard Kenny, Executive Director Craig Guy, other party operatives, and political consultant Richard Shaftan, of Neighborhood Research Group, who produced and distributed the flyers.

Under the law, the court should support a finding that his record is clean and that anyone who publicizes the expunged information is guilty of defaming him, the aide claims in his libel suit.

Whether the Supremes will agree might be considered a longshot.

Legally, “that conviction did not happen,” the former aide’s lawyer, Charles Cohen, insisted during a recent hearing in the case. “Speakers of information that is defamatory” are legally bound to make sure that information is accurate, the lawyer said.

However, Supreme Court Justice Roberto Rivera-Soto countered that creating such a legal fiction would mean “unringing the bell.”

Fellow Justice Barry Albin agreed: A conviction or a guilty plea is a reality, whether or not it is wiped from the record, he said. These days, in particular, information lives online as well as in the courthouse records room, Albin added.

Shaftan insists he didn’t know the conviction had been expunged when he produced the flyers for Vega’s campaign. So how could the conservative activist be held responsible, Albin asked.

Truth as an absolute defense: We’ve seen it often. It usually holds up.

Media has a huge stake in the outcome of this case. So an attorney for the the New Jersey Press Association addressed the justices: “The truth is not merely a defense, but a constitutionally protected value,” said Thomas Cafferty. “There is no question that the truth has been elevated to a constitutional dimension.”

In fact, the plaintiffs used truth as their defense, asking a lower-court judge to dismiss the case. But the judge allowed to continue. And it’s made its way all the way to New Jersey’s highest court.

Fitting, perhaps, that it would be during an election season.

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