Judges order 2 Pa. newspapers to delete stories

[July 07, 2010]  STATE COLLEGE, Pa. (AP) -- Two newspapers want a state judge to overturn an order requiring them to delete archived stories and other information about two defendants, cases that touch on the potential for media censorship.

The Centre Daily Times and The Daily Collegian student newspaper at Penn State were ordered to expunge records of information about the defendants, an unusual provision inserted by a defense lawyer into otherwise standard orders signed by Centre County Judge Thomas King Kistler.

Such orders typically direct public agencies to clear a person's record in cases in which charges are dismissed or withdrawn or aren't applicable for someone who's a first-time offender who completes a rehabilitation program.

Attorney Joseph Amendola told the Times he included the newspapers in orders for five defendants, including the two before Kistler, because he was concerned the media's First Amendment rights to free speech were trumping his clients' rights to have cleared records. It's common for attorneys to draw up legal documents for judges to consider.

Centre County Judge Bradley Lunsford, who handled the three other cases, cited free speech concerns Tuesday in signing new expungement orders, submitted by a newspaper lawyer, that rescinded an order on Friday. The new order did not require the newspapers to expunge information about the defendants, including news stories.

"Oh, my, yes. There's definitely a First Amendment issue," Lunsford told The Associated Press on Tuesday in a phone interview before he signed the new order.

Kistler, who received similar proposed revised orders from a newspaper lawyer, said he wanted to schedule a meeting this week with county President Judge David Grine and Amendola before taking further action.

"I want to see at this meeting what the outcome is from the defense lawyer that prepared these and see why it's in there," Kistler said. "Certainly we want to get it squared away. We have a very good relationship with all the media in Centre County, and we want to do what the statute requires."

Newspapers increasingly are getting requests from private citizens asking for archived stories to be deleted out of fear, for instance, that a potential employer may find damaging information on the Internet.

One of the Pennsylvania cases involved a man who had charges including sexual assault and aggravated indecent assault withdrawn in a plea deal in which he admitted two counts of indecent assault. The other involved a woman who finished a probationary program on two counts of endangering the welfare of a child.

Newspapers ultimately are under no legal obligation to change archives that are factually correct, and an expungement of court records doesn't mean the events never occurred, said Melissa Bevan Melewsky, a media law attorney for the Harrisburg-based Pennsylvania Newspaper Association.

"It's accurate when it was reported, and that means there's nothing illegal about it," she said. "It's protected speech."

Amendola did not immediately return phone messages from the AP seeking comment Tuesday. He told the Times this was a national issue bigger than the newspaper and judges.

"What's the sense in having your record expunged if anyone can Google you and it comes up," he was quoted by the newspaper as saying. "Ultimately, this is an issue that needs to be decided by the legislature."

Copies of the initial orders including the newspapers were not available publicly because those documents are covered under the expungement guidelines, a county court clerk said.

The Centre County judges usually sign 30 to 50 such orders at a time once or twice a week. The orders are vetted by the probation department and the district attorney's office before going to a judge to approve that outside agencies follow suit.

In the five cases, orders initially directed records of information to be expunged -- as with public agencies -- but did not specify to the newspapers what that entailed.

Kistler and Lunsford said judges typically don't read the text of each order and assume the orders are consistent with law. The orders are "certainly not things that we, as judges ... create. They're created by lawyers," Kistler said.

Lunsford said his new orders, first submitted for approval by Times attorneys, also rescinded a mandate that a private website that allows the public to search criminal records also expunge information.

Defense lawyers may be frustrated about the availability of information on the Internet, Lunsford said.

"But what they don't realize from the court's perspective, we only have jurisdiction over government offices that play a part in the prosecution of a particular individual, and no one else," Lunsford said.

The Times had published short stories on the cases of two defendants, while the other three cases appeared in weekly court reports. Executive editor Bob Heisse likened archived stories to historical records of facts, which aren't altered.

"I appreciate (Lunsford) acting as fast as he could to straighten this out," Heisse said. "It's very clear that it was on the wrong path."

[Associated Press; By GENARO C. ARMAS]

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