Summary of the Case
In the
news article The Trentonian to oppose
judge’s ‘unconstitutional’ prior restraint order, a judge in a child
custody case established the prior restraint, hence prohibiting the publishing
of a story about the case to the Trentonian newspaper. Namely, the reporter was
following the case in question in court, where he got a copy of the official
report from the mother of the child.
The case
itself is about a 5-year-old child who was caught carrying drugs on several occasions
in his school. After this, he was taken by the social services until the time
of the trial. Other than the custody trial, this case had some follow up
lawsuits in which the father of the child was charged for the possession of
heroin, which is why the child ended up
bringing it to his school.
The newspaper,
The Trentonian, covered all the relevant stories regarding the family. Furthermore,
after obtaining the copy of the document from a mother, the reporter for the
Trentonian was familiar with the law regarding his rights of obtaining such
reports and documents, and he accessed it lawfully.
Nevertheless,
the judge still held onto his decision to establish prior restraint when it
came to publishing the information from the report. The Trentonian immediately
appealed to this decision, stating how it “is a case where the newspaper has
documents that were lawfully obtained, and it has the right to publish their
content. Any order that restrains it from doing so in unconstitutional. And it
is presumed unconstitutional from the start”.
What is
more, the newspaper and its representatives in court said that the judge’s
decision equals for “censorship” therefore limiting the reporters’ First
Amendment rights to inform the public about any given topic, including the
sensitive ones, such as the case itself.
Commenting the case, the legal
director of the American Civil Liberties Union of New Jersey Ed Barocas
maintained that this decision “[impedes] on the rights of the free press”.
Overall,
the officials, journalists, and the readers have repeatedly expressed their
disapproval of the judge’s decision, especially because the newspaper protected
the boy’s identity throughout their reports about the case. Additionally,
according to the law, the reporters working directly in the court have the
limited privilege, in addition to the right to publish the information acquired
from official reports given to them in the court.
Legal questions
Reading
the news article about the case, some of the legal questions that came up are
regarding the process of establishing the prior restraint in this case. Although
there seem to be no elements that pass the Near test, the article also states how
the judge’s decision was “issued orally from the bench and served on the
newspaper Wednesday as it prepared to publish a story” about the case.
Hence,
the question is does the oral prior restraint have the same legal weight as the
officially brought court decision? To add, the judge brought the decision
without the presence of the reporter or his representatives, which puts the
authority of the process in question, as it did not fulfill its official
obligations about the prior restraint.
Relevant Doctrine
The category
of law in question is the prior restraint, which has been put on the official
report from the child custody case. In its definition, prior restraint is presumed
to be unconstitutional, and the least acceptable form of intervention. Essentially,
prior restraint means that the government, or its officials as it happened in
this particular case, have the right to block media publication before the
publication happens.
In order
to successfully prove or lawfully pass the prior restraint, the case has to be
put through the “Near test”, which was originally established in the Near v. Minnesota case. The test
consists of the six elements, which are: obscenity, incitement to violence, foreseeable
overthrow of the government, fighting words, obstruction of military recruitment
and the publication of military troop locations, including exact numeral
values.
Except
for the six basic elements of the test, there are four exceptions that do not
have to be proven in court. Those are national security, fighting words,
incitement to violence, and obscenity.
Taking
into consideration the fact that the prior restraint was passed because the
court case was in the family court, which are usually confidential. However,
since the reporter acquired the report from the complaint that was involved in
the lawsuit, it was accessed lawfully, hence the reporter should have had full
right to publish the facts from the case in its story.
Also,
the document in question doesn’t fall into any of the categories given in the “Near
test”. The case is involving a child and a family in a custody lawsuit over the
incident in which the child was caught carrying drugs in his folder. There were
no elements of obscenity involved, nor fighting words. Moreover, the matter in
question doesn’t involve any troop information nor military recruitment
obstruction information.
Possibly
the only element that could be met in the “Near test” is the national security
element, however, the gist of the case is not revolving around the details of
the drugs or any part that could actually bring national security into question.
Also,
as it was already mentioned, the prior restraint in this case was brought about
verbally and without the opposing representatives present, which can lead to
the assumption that the prior restraint wasn’t lawfully established.
Although
this is not in the category of prior restraint, the reporter in question does
have qualified privilege, which should have also been considered during the
case. Namely, when the reporter follows a story in court, he gains the
qualified privilege of being able to publish the information from the official
reports that have been acquired lawfully.
Conclusion
Finally,
we see how the personal discretion of the judge can lead to unlawful, yet
authorized decisions in court, such as the prior restraint in this case. According
to the “Near test”, the judge had no legal basis to pass the prior restraint on
this story, especially because the official report was given to the reporter by
one of the complaints involved in the lawsuit.
This decision,
if it gets supported by other court officials, might cause the ‘chilling effect’
in the free press. Censorship of the press is ultimately the greatest
limitation to the core of the free press, the U.S. constitutional rights given
to the press, and the public’s right to know of factual information, regardless
of the topic.
Word Count: 1079 words
References
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