... is question currently before the New Jersey Supreme Court.  During the 2007 Senate Primary, the Hudson County Democratic Party circulated flyers claiming that an aid to a Senate primary candidate was a "convicted drug dealer."  While the aid had in fact been convicted in 1993 of second-degree possession with intent to distribute and sentenced to five years in prison, his record was expunged in 2006.  He sued for libel, but the state appellate court determined that because the "successful expungement of [the] record does not make defendant's statements about that record 'false,'" circulation of the flyers did not give rise to an actionable defamation claim.  The aid appealed to the state supreme court, requesting that the court adopt a "legal fiction" that because the conviction was expunged, it never actually happened.     

 Read Michael Booth's article in the New Jersey Law Journal here.