Thursday, February 24, 2011

N.H. High Court Shields Daily from Privacy Suit in Expunged Criminal Recs Case

Rockingham County Court HouseImage by jimmywayne via FlickrThe N.H. Supreme Court this week ruled in Lovejoy v. Linehan et al. (Case No. 2010-343) that RSA 651: 5 XII (2007), which imposes misdemeanor criminal liability on anyone who discloses an annulled arrest or conviction record, cannot support a political candidate's invasion of privacy claim against a daily newspaper and a rival who purportedly leaked information about the candidate's expunged criminal record.

David Lovejoy was an unsuccessful 2009 candidate for Rockingham County Sheriff. He sued then-incumbent Sheriff James Linehan, Deputy Sheriff Mark Peirce and The Portsmouth Herald for invasion of privacy after Herald reporter Karen Dandurant published a story on October 27, 2008, that contained the following statement: "A record provided to the Herald said Lovejoy was involved in a case of simple assault and was convicted in 1989. Lovejoy said the case was annulled and was thrown out of court by the judge." Linehan and Peirce stepped down before any criminal proceedings were initiated against them under the statute.

The N.H. Supreme Court concluded that RSA 51:5 XII does not give rise to a civil remedy to the victim of the disclosure. The Granite State's only appellate court found that Lovejoy's expunged criminal record was a matter of legitimate public concern that could not support a privacy action grounded on public disclosure of private facts.

The Portsmouth Herald escaped liability, consistent with the U.S. Supreme Court decision in Bartnicki v . Vopper, 532 U.S. 514 (2001), a 6-3 decision written by Justice John Paul Stevens that held a media defendant was shielded from liability by the First Amendment for disclosing illegally intercepted communications where the media defendant itself was not involved in the illegal interception.

Hats off to the Reporters Committee for Freedom of the Press Web site ( for initially reporting on this decision. In the spirit of full disclosure, "TUOL" more decades ago than "TUOL" is willing to admit covered Rockingham County government for a N.H. daily newspaper, during which time, the then-Sheriff was indicted.  Plus ca change, plus que meme chose, as Granite State law enforcement is wont to say.

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  1. Too bad former Sheriff Linehan and former Deputy Sheriff Peirce were able to evade prosecution by stepping down. Every instance like this chips away at public trust and respect.

    During the past four years in Canada, technology has enabled citizens to record and expose egregious instances of wrongdoing by members of our RCMP and members of various other police forces. During the Toronto G20, police deliberately lied to citizens about the extent of their power, abused their authority, and at times used excessive force for which only one officer has since been charged. Following the G20, abuse denials came frequently and forcefully from the Metro Toronto/G20 Chief of Police until camera footage conclusively proved otherwise.

    I now wonder how prevalent police corruption has historically been in our western democracy.

    My sons are grown now, but I'm still embarrassed at my long-ago naivete; how I tried to instill in them an unwavering, unquestioning trust in police. My advice today to two of them (the third is a lawyer) -- though they don't need or want it, I'm sure -- would be to be wary, say nothing, and immediately request a lawyer. Sad, but much more realistic.

  2. As Finley Peter Dunne said on more than one occasion: "politics ain't beanbag." Not sure I'd paint law enforcement with the broad brush of corruption based on this latest incident reflecting the ever-increasing lowering of the bar on unethical campaign tactics in contemporary politics. Interested to learn that one of your brood opted for a career in the law based on some of your previous comments expressing your regrets over not having done the same.

  3. Sheldon,
    You're right, of course. Sweeping generalizations aren't appropriate. I do wish I were less cynical about law enforcement and politics. I'm still idealistic about journalism and the law, though. (Fox News doesn't count, does it?)

    My quiet middle son surprised us all by leaving his computer science/high-tech career and entering law school in his mid-twenties. He was the son who detested all aspects of English and was often scolded by teachers for being "a man of few words", yet he's ultimately chosen a profession that depends on words and language. He loves the law, has a general practice in Toronto, and does pro bono work for First Nations people. His law school graduation and bar admission were emotional for me, especially since I'd never made much mention of my own youthful ambition as my sons were growing up. I'm touched that you remember.