Prior Restraint Living Large In The Garden State
December 14, 2016 (Fault Lines) — It’s a sad case. In a Trenton, New Jersey charter school, a five-year-old was found with thirty packets of heroin in his lunch box. Later, a teacher would find crack cocaine in one of his folders. All these drugs created a custody dispute over the child, and a local newspaper, the Trentonian, decided to cover the case. So far, so good.
Here, the stories diverge. Local news reporter Isaac Avilucea says that he spoke to the child’s mother, who was fighting to retain custody, and that she asked him to cover the case. According to Avlilucea, she handed him the child abuse complaint that formed the basis of the case, and he duly reported on it.
The mother’s account is different. She claims that Avilucea, possibly while wearing a domino mask and clutching a bag with a dollar sign on it, stole the child abuse complaint out of her purse. Avilucea was apparently confronted by officials at the courthouse, and he refused to hand the document over.
In response to this alleged perfidy, newly-minted Superior Court Judge Craig Corson decided to issue an oral injunction, prohibiting the Trentonian from reporting any details about the case. The New Jersey Attorney General’s Office couldn’t have agreed more, because it later decided to move to extend the prohibition.
So just to be clear—an American court has banned an American newspaper from reporting on a matter of public interest. At least, unless that newspaper clears the story with the judge first, so he can make sure that it’s accurate and fair and not mean to the child.
Meanwhile, the AG’s office, perhaps sensing its position might not be as strong as it would like, decided to try to press theft charges against Avilucea. It told the newspaper that it would drop the charges if the newspaper destroyed the abuse complaint and agreed not to write any more stories about it, but Avilucea, who has resisted prior restraint before, refused the offer.
So, to state the obvious, the court is wrong. The AG’s office is wrong. You can’t stop a newspaper from publishing about something just because you’re afraid it might hurt someone’s feelings. That’s prior restraint. You also can’t stop a newspaper from reporting on information that you don’t feel that it should have. That’s also prior restraint.
This is as settled as an area of law can be. In 1971, when the New York Times acquired the Pentagon Papers, a treasure trove of embarrassing documents detailing the United States’ involvement in Vietnam that had been illegally leaked by military analyst insider Daniel Ellsberg. The US government wanted to prevent the New York Times from being able to discuss the papers, or at the very least, to be able to preclear what was written so as not to endanger national security interests. But the United States Supreme Court, in an extremely short, unsigned opinion, held that this was impermissible, before elaborating in a flurry of concurrences and dissents.
Obviously, if diplomatically embarrassing documents taken illegally regarding an ongoing war cannot be prevented from reaching the public through the press, the Attorney General’s efforts here are unlikely to succeed. That doesn’t mean it’s not cheeky though. When the AG’s office sought to extend the judge’s injunction, it even filed those documents under seal, and asked that the Trentonian not be able to report on them.
There are some countries where this is okay. In the UK, courts have the power of the super injunction, allowing them to not only prevent the media from reporting on the case, but to prevent the media from even reporting that there is a super injunction. America hasn’t traditionally had much respect for countries with this level of respect for free speech. In fact, Congress had one of its rare good ideas when it decided to pass the SPEECH act in 2010, barring speech related judgments in foreign courts from being enforced in the US unless they met US constitutional standards.
The court’s actions strike so clearly and so obviously at the core of First Amendment protections that it’s a shame the judge enjoys near absolute judicial immunity from suit for it. And of course, the Streisand effect will soon rear its ugly head for this poor five-year-old child, whose name went unreported in the Trentonian to this point not because of any court order, but because of basic human decency.
The story of a five-year-old with drugs is a little sad, sure. But it was only a matter of local interest. Now, in light of the repeated and frankly fascistic actions of the New Jersey AG’s office and Judge Corson, it’s a matter of national importance. A court will eventually step in and fix this, but in the meantime, it should be clear that people will not tolerate this sort of censorship even in the short term.
Some people are outraged by flag burning. Some by men in nooses. Some because you didn’t say Merry Christmas. But if there is one thing that we should all join in jeering, it’s the casual setting aside of basic constitutional freedoms. We should value freedom over fiat.