Journalism Vindicates the Need to Remember, Not a Right to Forget

We need to own up to our history, not to unpublish it.

Welcome to Second Rough Draft, a new newsletter about journalism in our time, how it (especially its business) is evolving, and the challenges it faces.

There’s been a recent flurry of suggestions that a “right to be forgotten” be imported from European practice into American journalism. I understand the impulse, but on balance it’s a very bad idea.

The notion here is that mistakes of our youth shouldn’t haunt people for life in places like search results, and that therefore the press, having considered the mistakes newsworthy once, should now unpublish them, usually by making the old stories invisible to search engines or by replacing names and other identifying information in old stories.

The problem is two-fold: First, this approach is simply antithetical to important principles of journalism. Things which have been published shouldn’t be disappeared; to do so fundamentally undermines accountability for publishing in the first place. If poor decisions about whether something was or wasn’t newsworthy were made, responsibility needs to be taken for that. (See this from the Kansas City Star for one recent remarkable example, and this from the Los Angeles Times for another.)

Next, we will inevitably fail to understand our history if we quietly cover it up. If something was newsworthy when published—or even if it was just generally accepted as newsworthy in a manner we no longer accept—conforming the available record of the past to accord with current values would deprive us of the invaluable lessons we can take from our past, even when they are painful.

So, if, as many of us now believe, systematic publication of mug shots was indefensible, we should own up to that, and we should work to destigmatize the minor offenses so often unfairly depicted. If that means adding a disclaimer or refutation to such items, so be it. Ditto on updating stories, for instance to note that someone was later acquitted of a crime they were reported to have been charged with. The proper analogy is to corrections when errors of fact are made: the solution isn’t to pretend the original version was flawless, but to highlight what we now know to be true, while also revealing our own fallibility. (Every news site should have a page like this.)

Perhaps the most serious problem with a right to be forgotten, however, is that not all mistakes of youth do turn out to be beneath our contemporary notice. Three examples will help make the point:

  • In 1927 in New York City a 21 year old man participated in a small riot, fighting with the police. The riot followed a Ku Klux Klan march in which he seems to have participated. The young man was Donald Trump’s father, the founder of his business empire, and many of us see a sort of “Rosebud” in this, a fairly straight line from these KKK sympathies to later business practices and so much more over the last five years.

  • In 1951 near Boston a 19 year old man paid someone else to take an exam in his place, leading to his suspension from school. The young man was Ted Kennedy, whose political inheritance (his older brother already represented the area in Congress at that time) and own great promise were repeatedly circumscribed by ethical concerns throughout his ensuing career.

  • In 1991 a 27 year old coach for an Alaskan high school team allegedly initiated a sexual relationship with a 16 year old girl on his team during a trip to New Orleans, and carried on the relationship for years. Last month, the revelation of this resulted in the man’s resignation as Attorney General of Alaska.

Knowing what we do about the climates of those times, do we really believe society would have been better served by unpublishing Fred Trump’s KKK connection in 19371, or— if they had been the subject of contemporaneous stories— Ted Kennedy’s cheating in 19592, or the former attorney general’s sexual assault in 19983? I think not.

Newspapers in major cities, including Cleveland, Boston and Atlanta, have tried to grapple with a “right to be forgotten” in recent years, as has the much smaller Bangor [Maine] Daily News. The approach at the Cleveland Plain Dealer is the most rigorous, and least subjective. First, the paper limits what it will consider for unpublishing to crimes. Then it excludes any violent and all sex crimes, and also excludes from consideration all elected or other public officials, and what it terms “celebrities.” (The paper defines public officials to include police officers, although its editor has recently expressed doubts about whether it should.) Finally, it requires that a crime be legally expunged before it will unpublish the news.4 All of these are important safeguards, although they don’t solve the problems already noted.

The Boston Globe recently announced a much squishier program. First, it will not require prior expungement, but a committee of 10 of its journalists will judge cases themselves, one by one. The Globe will remove items from Google search but not actually unpublish them. This means, of course, that the information will still be available to the Globe newsroom, and presumably to users of archival databases. In some cases, editor’s notes may be added to old pieces. The Globe says it will apply an “especially high bar for public officials and serious crimes,” but I read that to say it would at least consider blocking Google search from accessing news of an unexpunged serious crime by a public official. Really? (It was the Globe that broke the Kennedy cheating story in 1962.) And it notes that, while much of the impetus for its “Fresh Start” program is that the burden of stories of youthful mistakes falls disproportionately on people of color, race will play no part in deciding what to unpublish. It also requires individuals to apply directly, not through a representative.

In Bangor, the program is quite specific, a variant of that in Cleveland. Only crime stories are involved, and crimes of corruption and serious violence (including “murder, armed robbery or sexual assault”) are excluded, as are stories about public figures. Stories about misdemeanors must be at least five years old to be delisted on Google, those of felonies at least 10 years. All stories remain accessible through the site’s own search function.

The real issue here remains the central question for journalism: What is newsworthy? What deserves to be published? It is surely true that the answer to this question changes over time, and that is a significant measure of our progress as a society.  But the corollary to that is not to pretend that we have always known what we think we know today. Rather, it is to present the record of our past, including our past as publishers, with all its failings, to admit our mistakes and rectify them if we can, in fairness to the subjects of our journalism and our readers alike.

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1

In 1937, Senator Hugo Black of Alabama, later a liberal lion, was confirmed as a justice of the Supreme Court by a Senate vote of 63-16 after published reports— later proven accurate— that he had been a member of the Ku Klux Klan in the early 1920s.

2

In 1959, Ted Kennedy, unlike his brothers, was still little-known. His cheating was not publicly revealed until he ran to complete his brother the President’s unexpired Senate term in 1962.

3

In 1998, much of the Democratic Party was involved in rationalizing as unimpeachable a workplace affair between the 52 year-old President of the United States and a White House intern that began when the intern was 22 years old.

4

The Atlanta Journal-Constitution also considers requests tied to expungement of crimes under a 2013 Georgia law.