First Amendment advocate counsels caution, but doesn't rebuff, American right to be forgotten

Gene Policinski, Freedom Forum Senior Fellow for the First Amendment, published an op-ed last week for the "First Five" blog in which he counseled caution, but did not gainsay, newsroom "fresh start," or "right to be forgotten" (RTBF), programs.

Motivated in part by European notions of personal data protection, or informational privacy, especially RTBF, fresh start programs give persons covered in past news an opportunity to apply for the erasure of their coverage from online archives.  For NPR in February, David Folkenflik and Claire Miller reported on trending fresh start programs at major U.S. news outlets, such as The Boston Globe, "Revisiting the Past for a Better Future."  The NPR stories observed that these programs have come about in part because of European legal norms, even for newspapers beyond the reach of European legal jurisdiction.

In 2013, I wrote in a law review article that Americans' expectations of privacy, including RTBF, are in fact consonant with evolving European norms, but American law has been slow to keep pace.  The twin notions of finite punishment for past wrongs and of a second chance for persons who have paid their dues are quintessentially American, I wrote in a Washington Post op-ed in 2014.  Those values are reflected, for example, in Eighth Amendment jurisprudence and the Ban the Box campaign.

A prohibitive challenge to RTBF norms in the United States has been the First Amendment, which generally prohibits regulation of the republication of lawfully obtained and truthful information.  Sometimes for better and sometimes for worse, the free-speech absolutist bent of the First Amendment contrasts with a more flexible European approach to rights balancing.  Nothing about the First Amendment, however, precludes a private journalistic enterprise, such as the Globe, from erasing content voluntarily.

Like RTBF itself, fresh start programs have been criticized by free speech and mass communication scholars.  They remind us that journalism is the "first rough draft of history."  Tinkering with archives therefore vests private actors with a weighty, not to mention expensive, responsibility on behalf of the public.  Fresh start advocates point out that this work is not dissimilar to the exercise of news judgment in the first instance.  But the perspective problem is not eliminated by time.  There is no way to be sure that our present-day second-guessing of the historical record is more fair and objective than the original judgment, nor sufficiently preservationist for the future.

Old Slave Mart Museum, Charleston, S.C.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Just last week, I visited the Old Slave Mart Museum and other historical sites in Charleston, S.C.  To my eyes, the casual treatment of persons as property in the content of news media in times of slavery, as well as racism evident in later media during Jim Crow, is evidence of horrific injustice and a powerful reminder not to take for granted that one's present vision is free of bias.  What if that record had been erased, rather than preserved?  Could Henry Louis Gates Jr.'s "Finding Your Roots" have identified Ben Affleck's slave-owning ancestor (NPR) if history were redacted?

At the same time, I am an advocate for RTBF in some form, just as I support Ban the Box.  I am devoted to the First Amendment.  But digital media, that is, an internet that "never forgets," confronts our society with a new and qualitatively different challenge from any we have faced before.  Viktor Mayer-Schönberger well described in his 2011 book, Delete: The Virtue of Forgetting in the Digital Age, how forgetting, in addition to remembering, is an essential and well evolved part of human social culture.  A failure to forget is an existential threat.

Journalist and academic Deborah L. Dwyer has developed a useful and thought-provoking set of fresh start resources for journalists at her website, Unpublishing the News, cited by Policisnki.  I don't pretend to know whether fresh start, or European RTBF, or some other approach is the best solution, nor whether any of these models will stand the test of time.  I do believe that feeling our way forward is fascinating and necessary.

The op-ed is Gene Policinski, Perspective: News Outlets Need Caution in Offering a "Fresh Start," Freedom Forum (May 26, 2021).