## Facts

- G.D. had a 1993 New Jersey drug conviction and obtained an expungement order in 2006 under N.J.S.A. 2C:52-1 to -32.
- During a 2007 state senate primary campaign, political operatives opposing candidate Brian Stack obtained information about G.D.’s conviction, including a judgment of conviction and a corrections database entry.
- Defendants prepared and mailed campaign flyers criticizing Stack by highlighting Stack’s association with G.D., using G.D.’s name and photograph and stating G.D. was a “DRUG DEALER” who “went to JAIL,” including a claim that the conduct occurred “near a public school.”
- Roughly 8,184 copies of each flyer were mailed to members of the public.
- G.D. sued various political figures and consultants asserting defamation and multiple privacy and emotional-distress torts, arguing the expungement and alleged inaccuracies made the flyers actionable.
- The trial court denied defendants summary judgment, reasoning expungement prevented defendants from relying on truth as a complete defense.
- The Appellate Division reversed, holding defendants could assert truth notwithstanding expungement.

## Issues

1. Whether an expungement order under N.J.S.A. 2C:52-1 to -32 bars defendants from asserting truth as a defense to defamation and related privacy torts based on publication of an expunged conviction.
2. Whether the flyers’ statements were sufficiently accurate (substantially true) to defeat claims for defamation, false light, and related torts.
3. Whether the First Amendment protects truthful or substantially truthful campaign speech about an associate’s criminal history despite expungement.

## Decision

- The Supreme Court of New Jersey unanimously affirmed the Appellate Division and granted summary judgment to defendants.
- The court held expungement does not convert historically true statements into actionable falsehoods or eliminate the defense of truth.
- The court concluded the flyers were at least substantially true as to the “gist” that G.D. had a serious drug-distribution conviction and served a prison sentence; any imprecision (including the “near a public school” detail) was not material to the defamatory sting.
- The court ruled the First Amendment protects truthful or substantially truthful political speech on matters of public concern, and the expungement statute should not be construed to impose tort liability that would chill such speech.
- The court rejected privacy-based claims where the information concerned criminal proceedings and was newsworthy in evaluating a candidate’s associations, and found no independent tort arose merely from using lawfully obtained expunged-record information.

## Legal Principles

- Truth remains a complete defense to defamation in New Jersey, and an expungement order does not bar a defendant from proving the accuracy of statements about the conviction.
- Substantial truth defeats defamation and false light claims when the statement’s gist is accurate, even if some details are imperfect.
- Political campaign speech about matters of public concern receives strong First Amendment protection, including truthful or substantially truthful discussion of criminal history relevant to evaluating a candidate’s judgment and associations.
- Publication of information stemming from criminal proceedings generally cannot support liability for publication of private facts when the matter is of legitimate public concern.
- New Jersey’s expungement statute limits certain uses of records but does not create a broad private cause of action against private speakers for disseminating truthful information lawfully obtained.

## Conclusion

The court held that expungement does not erase historical truth for purposes of civil liability and that defendants could not be held liable for campaign flyers that were truthful or substantially truthful about G.D.’s expunged conviction, because both common-law defenses and constitutional protections for political speech barred the defamation and related privacy tort claims.


G.D. v. Kenny, 15 A.3d 300 (N.J. 2011)