In Connecticut, no First Amendment protections for discussing the public record
Hello, prior restraint. We meet again!
The relationship between the media and Connecticut courts is about to get very, very ugly.
The Connecticut Law Tribune has come forward with information showing that New Britain Superior Court Judge Steven Frazzini has enjoined the newspaper from publishing a story based on court documents entered into the public record and published on the Judicial Branch’s website.
Tribune lawyer Daniel Klau has already filed an appeal, but even Klau himself has been slapped with a court order demanding his silence on the subject.
From the Connecticut Law Tribune:
The action before Frazzini was in juvenile court session, where judges have the discretion to limit proceedings to those participants deemed necessary. A writer representing the Law Tribune was not permitted to remain in the courtroom to witness the proceedings, after his presence was objected to by a lawyer for one of the parents in an underlying custody case and by a guardian ad litem.
Klau said he was not sure he could talk specifically about who the lawyers were in the case, or even the judge.
The lawyer for the mother in the custody case is Stephen Dembo, of West Hartford, who took the unusual step of requesting the injunction to prevent the newspaper’s publication of a story about the court filing. The guardian ad litem is Susan Cousineau, a prominent voice in the ranks of guardians ad litem, who also cochaired a legislative task force on GAL reform in the last legislative session.
The Department of Children and Families legal director, Barbara J. Claire, wanted to make it clear that her agency was not behind the request for the publication ban, and said in a statement: “The department did not request that a court grant a motion to prevent media coverage in a confidential child protection case.”
The motion to bar publication was filed on Friday, Nov. 17. The Law Tribune immediately filed an objection to the motion, arguing that any prior restraint on publication is unconstitutional. “Prior restraints on speech and publication are the most serious and the least tolerable infringements on First Amendment rights,” the brief states, quoting the 1976 U.S. Supreme Court case of Nebraska Press Association v. Stuart.
As the Tribune article notes, issues of prior restraint have been litigated to death, and we have clear standards for what is and isn’t allowed to be suppressed. In a case like this, the content of an order is only subject to suppression if it could present a threat to national security.
What’s mindblowing about this injunction is that even when there may be a threat to national security, suppression of the contents of a pre-published court order is extremely rare. As I said above, the case law regarding prior restraint is settled to the point that most people don’t even try to have things censored—it would be a pointless exercise.
As this article over at TechDirt notes, this was a juvenile case, which is probably why the judge felt it was appropriate to prevent the article from being published. But we’re looking at court documents that were already entered into the public record. The bell had been rung. If there was a privacy concern, the court should have done its due diligence before the records were made available for inspection.
It doesn’t sound like the Tribune is fishing for dirt, either:
James H. Smith, president of the Connecticut Council on Freedom of Information, called prior restraint issues “settled case law. You can’t prevent the press from printing news. Even in Juvenile Court. It’s a matter of covering how the American system of justice is being handled.”
He added, “Prior restraint was settled with the New York Times’ Pentagon Papers case” in 1971. “The U.S. Supreme Court says that you can’t stop the press from publishing a story unless it’s Armageddon.”
Smith, a veteran Connecticut writer and editor, said the press is typically respectful of the privacy interests of children, but is keenly interested in “how the system is serving all those involved. No judge should try to shut down reporting on how the court system works.”
From what I’ve seen of the juvenile system, maybe that’s the precise reason the judge signed the injunction.
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They should publish the story, if only to defy the judge’s overreach.
Yep. Sometimes the only right thing to do is disobey the law.
Hard. Openly. And without any special pleading.
Disobey the judge is good enough for me.
IANAL, but it looks like it is the judge who’s violating the law.
And you can see that the question often resolves to this…
The Constitution, or some conflicting law?
The constitution itself resolves that question: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made or which shall be made under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
I remember from law school cases in which the issue was whether a Restrained Party was free to ignore an unlawful injunction or whether the Restrained Party had the duty to challenge the injunction through appeal or writ process. That was many years ago, and I do not remember the answer. Nonetheless, I would probably not simply ignore the injunction. I would probably file for a writ and at the same time, write about the injunction (but not about the underlying juvi case).
And if done properly creates much more public interest than just publishing the article would have. People get curious when they’re told they can’t see something.