OP-ED | Judge Crossed Line On Prior Restraint
Every now and then something happens that makes me say to myself, “Thank goodness I live in America.” No, we’re not talking about a particularly uplifting story, but one of attempted censorship, before the fact, right here in Connecticut.
Last week New Britain Superior Court Judge Stephen Frazzini took a controversial action most legal observers felt had been settled decades ago as the Vietnam War was raging amid great unrest and a feeling we were in over our heads in the southeast Asia quagmire.
Frazzini barred the Connecticut Law Tribune from publishing an article in a child custody case that was based on a document, a writ of habeas corpus, that had initially been filed on the open civil docket and made public on the Judicial Branch’s website, but was later moved to juvenile court, at which point Frazzini sealed it.
Under pressure from several media organizations that filed an amicus brief challenging his action, Frazzini this week agreed to lift the order but it remains to be seen whether the judge’s latest action will be heard by the state Supreme Court.
It’s not uncommon for judges to restrict information in court cases involving juveniles, lest the identities of innocent young people be revealed. Newspapers also have traditionally been careful not to reveal the names of minors for the same reason.
It goes without saying that journalists must play by the same rules as everyone else. No reporter should obtain information unlawfully — through breaking and entering or by hacking into computer servers or email accounts and the like. Nor, in my opinion, should journalists obtain information by lying or misrepresenting their identities.
Connecticut Law Tribune reporter Isaac Avilucea did none of those things. But Frazzini took the extremely rare step of preventing publication of a news article based on information that had been gathered lawfully.
Government censorship before the fact is called prior restraint. Most legal observers thought the matter had been decided in 1971, when the U.S. Supreme Court ruled the New York Times and the Washington Post could continue to publish the secret Pentagon Papers study, a leaked Pentagon history of the Vietnam War, despite an injunction sought by the Nixon administration that would have prevented publication. Legal scholars say the Connecticut state constitution contains even stronger language against prior restraint.
The most widely recognized standard for prior restraint is in matters of extreme threats to public safety or national security. But as Avilucea wrote in a recent op-ed, his is “a story about child security, not national security.”
The frustrating thing about constructing an analysis of Avilucea’s case is that we know so little because of the secrecy that surrounds it. Frazzini’s order was made behind closed doors during a juvenile court proceeding at which the press was told to leave.
Furthermore, the text of Frazzini’s order has been sealed, so the public cannot even evaluate its merits. The Tribune’s lawyer, the brilliant First-Amendment attorney Dan Klau, is under a restraining order, so his ability to discuss the matter is limited, even, he told the Tribune, in what he can say to his own client.
Illustrating the folly of the situation, a pair of attorneys for the children’s mother, both of whom had argued loudest against changing the judge’s order, inadvertently blurted out the last name of the parents during the open hearing on Monday. The lawyer asked that the surname be stricken from the record. “It’s difficult to do this,” one of them added. No kidding.
What’s going on here? Up until he vacated his original order on Wednesday, Fazzini had been operating as if he were guarding delicate national secrets.
The lesson should be obvious. We can’t have public officials — appointed or elected — deciding what gets published and what does not. Those officials can withhold information as allowed by law, but in a free society the government can’t be allowed to decide what media outlets disseminate after they have it. It’s what separates us from almost every other nation on the planet.
Case closed, Judge Frazzini. Or at least I think that’s what the state Supreme Court will say if the case is heard.
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