N.J. judge holds hearing in press censorship case – NorthJersey.com – NorthJersey.com
A court hearing on press censorship unfolded over more than two hours on Friday, pitting a newspaper's right to publish sensitive information against the state's right to keep it secret.
Superior Court Judge Lawrence DeBello heard arguments in Trenton over a temporary court order barring The Trentonian newspaper from publishing articles based on a confidential child-abuse complaint obtained by one of its reporters.
DeBello said he held the hearing to weigh the propriety of the order, which was issued in October by another judge, Craig Corson. After hearing arguments privately and then in open court, DeBello said he would hand down a ruling at a later date.
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Judicial orders imposing a prior restraint on a news organization prohibiting it from publishing information on a specific topic are extremely rare in the United States. Attorneys for The Trentonian and one of its reporters argued Friday that Corson did not take into account some of the U.S. Supreme Courts most important rulings on the First Amendment, which guarantees the freedom of the press.
Eli Segal of the law firm Pepper Hamilton argued for the Trentonian that censoring the press is more serious than a criminal penalty because it doesnt just chill speech; it freezes it altogether.
Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights, Segal said, quoting from the U.S. Supreme Courts 1976 decision in Nebraska Press Association v. Stuart.
New Jerseys child welfare agency, the Division of Child Protection and Permanency, asked Corson for a temporary injunction against The Trentonian last year after learning that one of its reporters, Isaac Avilucea, had gotten a copy of a child-abuse complaint it was filing against the parents and paternal grandmother of a 5-year-old boy in Trenton.
The complaint describes how the boy, identified as N.L., went to school carrying packets of heroin in his lunchbox one day and crack cocaine in his school folder six weeks later, among other sensitive details. He has since been removed to foster care.
On behalf of the agency, Assistant Attorney General Erin OLeary argued that the freedom of the press under the First Amendment is not an absolute right and that Corsons order prohibiting The Trentonian from publishing certain information was necessary to protect N.L.s privacy.
The more that the world learns of this intensely private situation, the more likely he is to be ostracized by his peers, OLeary argued. Allowing confidential documents to be publicly disseminated also could hurt the states ability to investigate child-abuse incidents, she argued.
In a landmark 1971 decision, New York Times Co. v. United States, the U.S. Supreme Court declined a request from President Richard Nixons administration to prohibit The New York Times and The Washington Post from publishing stories based on the Pentagon Papers, a classified study of the Vietnam War.
The governments interest in keeping that information secret could not overcome the freedom of the press to choose what to publish, the justices said. That ruling followed a 1931 decision, Near v. Minnesota, in which the Supreme Court said nearly all forms of prior restraint are unconstitutional.
Segal cited the Pentagon Papers case during the hearing and argued that the Trenton child-abuse case continued to be worth the publics attention. New Jersey state officials had not cleared the very high bar required by the U.S. Supreme Court for censorship of the press, he said.
School officials at the International Academy Charter School in Trenton reported to authorities in September that they had found 30 packets of heroin in N.L.s lunchbox. The boy was allowed to remain with his family. Six weeks later, school officials reported that he had been found with crack cocaine in his school folder, and state officials then took action to remove the boy to foster care.
There is still a story to be hold here, Segal said.
Courts have allowed prior restraints on news organizations to prevent the publication of troop movements during wartime and when a magazine attempted to publish the secret to building a hydrogen bomb. OLeary argued that details about N.L.s case and other child-abuse investigations are similarly sensitive.
One of the questions in the case is whether Avilucea broke the law when he obtained the child-abuse complaint from N.L.s mother, Tashawn Ford. The state Attorney Generals Office has accused the reporter of stealing the document, although it has not filed any related charges.
Segal and Bruce Rosen, Aviluceas attorney at the law firm McCusker, Anselmi, Rosen and Carvelli, said the reporter did not obtain the complaint illegally.
Theres been no real case brought by the state here to set up an unlawful obtaining of these documents, Rosen said. What we have is a series of certifications that reek of innuendo because no formal accusation has been made.
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N.J. judge holds hearing in press censorship case - NorthJersey.com - NorthJersey.com