New Jersey’s attempt to criminally prosecute news reporters for refusing to erase a truthful, lawfully published story about an expunged arrest is not just an attack on press freedom—it’s a brazen effort to rewrite history and muzzle the First Amendment.
At a Glance
- New Jersey is prosecuting journalists for not deleting public arrest information after expungement.
- Legal precedent and the First Amendment firmly protect truthful publication by the media.
- The case, State v. Katzgrau, could have chilling effects on journalism and free speech nationwide.
- Experts say the prosecution directly contradicts New Jersey Supreme Court and U.S. Supreme Court rulings.
New Jersey’s Unconstitutional Attack on Journalists
In a move that would make even Orwell blush, New Jersey prosecutors have set their sights on the editor and publisher of Red Bank Green, a local news site, for refusing to purge a public police blotter entry after the underlying arrest was expunged. The arrest—public record and reported as fact—became the subject of a criminal complaint when the arrestee’s charges were dismissed and wiped clean by court order. Instead of complying with demands to erase history, Red Bank Green’s editor added a note clarifying the expungement, upholding their editorial policy and the public’s right to know. For this, the state is now pursuing criminal charges under N.J.S.A. 2C:52-30, a statute that makes it a crime to reveal expunged arrest information “with knowledge of the expungement.” The real kicker? Every major court decision, from the U.S. Supreme Court to New Jersey’s own high court, says this is blatant overreach and flatly unconstitutional.
The prosecution’s case—filed after a judge found probable cause based on a citizen’s complaint—flies in the face of the New Jersey Supreme Court’s 2011 ruling in G.D. v. Kenny. That decision made it clear: the expungement statute only binds government agencies, not private citizens or the press. In other words, the state can’t force journalists to un-publish truthful, lawfully obtained information simply because a court order erased the arrest from government files. The U.S. Supreme Court has said the same, time and time again: the First Amendment protects the right to publish facts about public proceedings, especially when the information was lawfully acquired and matters to the public.
The Precedent: Courts Have Spoken—Truthful Reporting Isn’t a Crime
The legal landscape here isn’t a gray area—it’s a brick wall. In G.D. v. Kenny, the New Jersey Supreme Court held that truth is a defense to any defamation claim, even when the underlying conviction has been expunged. More importantly, the court found the expungement law does not criminalize truthful speech by private individuals or media outlets. The statute is supposed to prevent government agencies from disclosing expunged records, not force journalists to scrub the truth from the historical record.
The U.S. Supreme Court has drawn a bright constitutional line, stating in cases like Cox Broadcasting Corp. v. Cohn and Smith v. Daily Mail that the government cannot punish the publication of lawfully obtained, truthful information about matters of public concern. Legal scholars have been absolutely clear: requiring newsrooms to “unpublish” or rewrite old stories at the government’s whim would create a chilling, “Orwellian” regime, and would shred the fabric of a free press.
Why This Prosecution Threatens Every American’s Rights
If New Jersey’s prosecution is allowed to proceed, it will set a dangerous precedent for every journalist and news consumer in America. It’s not just about one local publisher or a single police blotter entry—it’s about whether government can force the media to rewrite history. If expungement laws can be weaponized this way, what’s next? Will politicians demand old news stories about their scandals vanish after a court “erases” the record? Will government bureaucrats decide which facts the public is allowed to remember?
This case is a direct threat to the First Amendment and the public’s right to know. It undermines transparency, chills reporting, and opens the door for government to decide what can—and cannot—be said about the past. Legal experts and constitutional defenders are unanimous: the prosecution is legally baseless, morally outrageous, and must be dismissed before it does lasting damage to freedom of the press and the right of every American to read, remember, and judge for themselves.
Sources:
Studicata: G.D. v. Kenny Case Brief
Appellate Law NJ: Expungement of Conviction Does Not Make Reference to That Conviction Tortious
