In a case that appears to violate the First Amendment, a New Jersey newspaper has been banned from publishing articles containing certain sensitive information.
Isaac Avilucea, a reporter at The Trentonian, was reporting a story on a 5-year-old found to have possessed heroin in his lunch box at school. A month later, the same student was found with crack cocaine in his folder. After the second discovery, the New Jersey Department of Child Protection filed a complaint in court to take custody of the child.
While Avilucea was reporting on the story, the mother gave him a copy of the complaint filed by Child Protection in court. However, that violated New Jersey law, which states that such legal documents cannot be disseminated by anyone except the state.
After The Trentonian published the report with excerpts from the complaint, Superior Court Judge Craig Carson issued an injunction and blocked the paper from publishing “any information contained from the verified complaint in any form” and ordered the paper to “remove any publication source, any document if already printed and or distributed.”
The Record, another New Jersey paper, noted that judicial orders that censor news organizations are quite rare and have been rejected by the United States Supreme Court:
“Judicial orders that impose a ‘prior restraint’ on a news organization, prohibiting it from publishing articles on a specific topic, are extremely rare in the United States and have been rejected by the U.S. Supreme Court several times.”
Judge Carson’s injunction appears to be in violation of the First Amendment and breaks with the precedent set by the 1971 New York Times Co. v. United States case, which decided the legality of the Pentagon Papers being published.
In his concurring opinion, Justice Potter Stewart said prior restraint is legal only when the publication of information would “Surely result in direct, immediate, and irreparable damage to our Nation or its people.”
New Jersey Attorney General Chris Porrino argues the injunction is legal, because the complaint The Trentonian published contained the child’s private information, including his address, name, and medical records.
Avilucea told The Record he believes the decision to publish information should be left to news organizations, not the government:
“I don’t know how we’re supposed to operate in a democracy if media organizations are having to capitulate to the court or the Attorney General’s Office. The discretion of what to publish should be vested in reporters and editors, not in the court.
The Trentonian reported that the Attorney General’s office indicated it was willing to drop the injunction if the paper informed the government about what information from the complaint it plans to publish.
Should the injunction stand, it could have a profound influence on the way reporters in New Jersey cover stories involving the government.