RTDNA joins brief opposing prior restraint in Connecticut case

December 1, 2014 08:30

Introduction by Steven D. Kalb, The University of Connecticut

It was the early part of Thanksgiving week that we first heard about a judge in New Britain, Connecticut ordering the Connecticut Law Tribune not to publish a story. As State Coordinator for RTDNA and a member of the Connecticut council on Freedom of Information my job was to get RTDNA to first know about and then to sign on an amicus brief challenging the Judge’s ruling. RTDNA was “on board” within hours. And this story is only just beginning. The trial court (not the appellate court) held  an emergency hearing Monday morning in New Britain. According to the Connecticut Post, the judge did not indicate when he might rule on the injunction. On Friday, the trial court also issued a 17 page written ruling, which is sealed.

Reprinted with permission of the Connecticut Law Tribune

Judge Issues Injunction Barring Law Tribune From Publishing Article

THOMAS B. SCHEFFEY, The Connecticut Law Tribune
In a ruling from the bench Monday, Nov. 24, New Britain Superior Court Judge Stephen Frazzini enjoined the Connecticut Law Tribune from publishing an article based on a court document that had previously been published on the Judicial Branch website.
Daniel J. Klau, the newspaper's lawyer, said he has already filed an appeal. He and other media law attorneys say this appears to be an extraordinarily rare case of prior restraint on free expression guaranteed by the First Amendment. They say that normally pre-publication court orders have been deemed constitutional only in matters of extreme threats to public safety, on the level of national security.
Frazzini's oral ruling is currently sealed, but Klau said he is working to have it unsealed. "I am actually under a restraining order about what I can tell my own client. There are some things that I can share," said Klau, of the Hartford office of McElroy, Deutsch, Mulvaney & Carpenter. "What the Law Tribune can say," he said, "is that in a child protection case on the juvenile court docket, the court granted a party's request for an injunction barring the Connecticut Law Tribune from publishing information that it lawfully obtained about the case."
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.
In fact, the Connecticut Constitution provides greater protection of speech than the U.S. Constitution. In case law, the brief states, the state Supreme Court has ruled that juvenile court confidentiality does not trump First Amendment rights.
The petition cites the 1985 case of In re Juvenile Appeal, which concludes that juvenile confidentiality statutes "do not completely prevent or abolish publicity in juvenile cases, but by restricting accessibility to juvenile records and proceedings may reduce the amount of publicity generated."
That case quotes from the landmark 1931 prior restraint case of Near v. Minnesota, in which the U.S. Supreme Court ruled a state statue outlawing scandal sheets' yellow journalism was unconstitutional.
William Fish, of the Hartford office of Hinckley, Allen & Snyder has frequently represented The Hartford Courant in media law cases. "This sounds like a true case of prior restraint," he said. "It's outrageous. It sounds like an overreach—a clear breach of what a judge is allowed to do..."
"Prior restraint of the press is only constitutional in very rare situations," said Fish. "You basically have to have a situation where someone is going to publish in advance the plans for the D-Day invasion."
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."