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

Image 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 (www.rcfp.org) 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.