Last week, a state judge ordered the Connecticut Law Tribune not to publish an article on a child custody dispute—a rare instance of prior restraint of the American press. He sealed the order, as well as other documents filed in the case.
This week, the judge vacated that order. He kept the order under seal, nonetheless, and also sealed the vacatur. Then, he unsealed both the order and the vacatur, which does not exactly say the order was wrongly decided, or that it violated the First Amendment.
Confused yet?
So is Stephen Frazzini, the Connecticut trial judge presiding over the case—stumbling around the freedoms of speech and press with all the finesse I showed during spring break in college. But, to be fair, I don’t think the judge is contemptuous of the press. I think Frazzini is sincerely concerned for the welfare of children, and inexperienced in First Amendment law and how it interacts with certain special legal considerations for juveniles.
As the Law Tribune reported Dec. 4:
The chain of events … began … when a Law Tribune reporter located a document on the public portion of the Judicial Branch website … posted by [a] divorcing father and his attorneys. What started out as a story on unusual legal tactics … in a custody battle … mushroomed into a … debate on press freedom versus … confidentiality in proceedings in juvenile court, where custody cases are heard.
The lawyer for the divorcing mother requested the prior restraint order. Frazzini granted it after a … hearing … closed to the public, and then defended it with a 17-page decision … days later. The Law Tribune’s lawyer … was not permitted [to] share details of either the initial hearing or the decision with his clients.…The Connecticut Supreme Court said it would handle any appeals directly.
[Days later], another hearing was held, this one open to the media.… [S]everal news organizations said they would fight any court order not to publish the story. And lawyers for the mother and the children delivered pleas to keep the injunction in place.… [Then], Frazzini reversed field, lifted the prior restraint order, and unsealed all documents pertaining to the Law Tribune’s case.
Various parties, including the Law Tribune, still want the state Supreme Court to review the case. The issue, however, is whether there is a live legal dispute anymore in light of the judge’s vacatur.
“We intend to proceed and argue that the case is not moot,” Daniel Klau, the Law Tribune’s attorney, told CJR. “We believe that on the merits the Supreme Court would agree that the trial judge violated the First Amendment—and what we want is for all judges in the state to have clear guidance from the court that you cannot issue prior restraints on the press.”
The state Supreme Court has ordered all parties to submit memos of law by Dec. 10 addressing whether the case should be dismissed as moot. Steven Dembo, the attorney for the mother who petitioned for the prior restraint in the first place, did not respond to my request for comment. Nor did Susan Cousineau, the children’s guardian ad litem, who also argued in favor of the prior restraint.
Order is vacated, but not on First Amendment grounds
How did we get here? The underlying custody case involves information from records of the state Department of Children and Families—which the divorcing dad and his lawyers posted through the public website, as part of a habeas petition. In a written decision clarifying his prior restraint order, first announced orally from the bench, Frazzini focused on the extent to which the “confidentiality of juvenile child protection proceedings and DCF records … override the presumption of unconstitutionality for prior restraint.”
Frazzini found that a prior restraint is justified if it will prevent an “interest of the highest order” from being harmed by a “great and certain evil.” And, after some artless analysis and references to cases mostly involving the disclosure of names of juvenile delinquents and rape victims, he found that the interest here is a child’s psychological well-being, and the evil is the harm done to that well-being by disclosing information about a victim of abuse or neglect. Citing no specific facts, the judge said the standard had been met.
Frazzini also found the Law Tribune did nothing wrong in obtaining the document that the divorcing father and his attorneys posted on the Judicial Branch’s website. But he went on to say that the document’s public availability did not necessarily mean the newspaper could report on or publish it. “A person who comes into possession of confidential juvenile records or information,” Frazzini wrote, “may not further disclose the information to others.”
When the judge vacated that order days later, he did not exactly walk back his earlier analysis. As the Law Tribune reported, “It doesn’t appear that he decided his initial order ran afoul of the First Amendment or any US Supreme Court decision.” So what did the vacatur say? Basically, that the information the judge had barred the Law Tribune from publishing was now easily accessible on the internet, and therefore it made little sense to continue barring the Law Tribune from publishing it.
“However important the interests of the state and these children in the confidentiality of juvenile records and proceedings,” Frazzini wrote, “continuing to order the Law Tribune not to publish this information … will no longer have any effect in protecting those interests.”
To his credit, the judge did perform a more thorough First Amendment analysis the second time around, but he really did not use the First Amendment directly to vacate the prior restraint.
He also did not consider state constitutional protections for speech and press, saying in a footnote, “The Law Tribune asserted its claim of a right to publish under both the United States and Connecticut Constitutions, but made no argument as to how such a right may be provided any greater protection under” state law. So, Frazzini said, he did not “address such a claim.”
That’s a bit odd because Klau, the Law Tribune’s attorney, did make that argument in one of his briefs. (It’s also made well by the ACLU of Connecticut, in an amicus brief prepared for the state Supreme Court, not Frazzini, in the event the high court reviews the case.)
Precedents protect Law Tribune’s right to publish
Some closing thoughts: Putting aside state laws that make juvenile records confidential, prior restraints are very rarely constitutional, even when national security concerns are at stake. Since the 1931 case Near v. Minnesota, the US Supreme Court has consistently held that prior restraints are presumptively invalid. They’re seen as “the most serious and the least tolerable infringement on First Amendment rights,” as the Court said in the 1976 case Nebraska Press Association v. Stuart.
That means, according to the Reporters Committee for Freedom of the Press, editorial decisions generally are left to news organizations alone. And, with very few exceptions, thanks to the 2001 case Bartnicki v. Vopper (and its main progenitor, the 1979 case Smith v. Daily Mail Publishing Co.), the press can’t be punished for publishing truthful information about matters of public concern, at least in the absence of a competing government interest of the very highest order.
Those separate but related protections are valuable to the Law Tribune.
On the facts as we know them, the paper likely would be protected by the Near line, if not the Bartnicki line. It’s doubtful Frazzini’s chief concerns (the confidentiality of juvenile records and the children’s best interests) would be considered so great that they’d overcome the heavy presumption against prior restraints. And, since the Law Tribune did nothing wrong in obtaining the document from the court’s website, the paper is free to publish, though it’s debatable whether the information at issue is a matter of public concern.
It’s true that courts nationwide appear most willing to issue prior restraints in matters related to the administration of a criminal trial (yes, many courts are more generous in this context than in the national security context). But this is not a criminal trial—it’s a civil custody matter. All of which means Frazzini’s chief concerns are significant but not enough, I’d say, to outweigh the Law Tribune’s right to publish information it lawfully obtained.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.