The Volokh Conspiracy
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Fortunately, the judge promptly backed down and vacated the order after the newspaper challenged it in federal court, but it's noteworthy that the judge (Bergen County, N.J., Superior Court Judge Jane Gallina-Mecca) issued it in the first place. The article that was supposed to be taken down, "Bergen Father Fights To Get Daughter Back After Wrongful Prosecution," involved the apparent exoneration of a man accused of molesting his daughter. It also involved allegations that the prosecutor's office had issued a misleadingly incomplete news release when the man was accused. Here's an excerpt:
Damian Kazazian, a Hackensack father that was charged with inappropriate sexual activity with 5 year old girl, has filed a notice of claim against Bergen County Prosecutor John Molinelli, Hackensack Police Director Michael Mordaga and members of both agencies. In the complaint, Kazazian says he was "wrongfully arrested, wrongfully charged, wrongfully prosecuted, defamed, slandered, libeled and had countless intentional and negligent torts committed against me".
In January, the Prosecutor's Office dropped all charges against Kazazian after hearing evidence presented by Kazazian's attorney. The BCPO dismissed those charges before the case went to a grand jury. The 5 year old girl, it turns out, was Kazazian's daughter and the complaint was made by the girl's mother [Shirley Gonclaves] who is now charged with criminal coercion, extortion and harassment, according to Kazazian's attorney.
Despite the Bergen Prosecutor's decision to drop the charges against Kazazian, the well-respected local businessman remains in a battle with Bergen County's Child Protection and Permanency (formerly known as DYFS). Through the actions of DYFS, Kazazian is limited to supervised visitation with his daughter of about 4 hours per week, and DYFS often cancels at the last minute according to Kazazian….
In April the Bergen Dispatch, along with other media, reported the arrest of Kazazian based only on a press release from the Bergen County Prosecutor's office that stated:
On April 17, 2014, members of the Bergen County Prosecutor's Office, Special Victims Unit, and the Hackensack Police Department arrested Damian Kazazian after learning that he engaged in inappropriate sexual activity on several occasions with a five (5) year old female acquaintance. The child was brought by her mother to Valley Hospital in Ridgewood, at which time a staff member learned of the situation and notified the Special Victims Unit. The child was later brought to the Bergen County Prosecutor's Office in Paramus, where she was forensically interviewed by a detective from the Special Victims Unit. During that interview, the child confirmed to the detective in greater detail what she had previously disclosed to her mother. The ensuing investigation resulted in the arrest of Mr. Kazazian.
Kazazian was charged with one (1) count of Aggravated Sexual Assault and one (1) count of Endangering the Welfare of a Child.
Bail for Kazazian was set by Judge Mary Thurber, J.S.C., at $250,000.00 with no 10% option and no contact with the victim and/or mother. Mr. Kazazian was subsequently remanded to the Bergen County Jail in lieu of bail.
… The Prosecutor's office omitted in the statement to the press is that the 'five (5) year old female acquaintance' was Kazazian daughter and that the Mother, Shirley Goncalves was arrested in 2010 and charged with aggravated assault and possession of a weapon for agedly stabbing Kazazian. The allegations leading to Kazazian's arrest came four years to the day that Goncalves was arrested for the stabbing….
The Prosecutor's office also omitted that according the hospital report, when asked, the child did not allege any inappropriate touching or that a representative of the Division of Youth and Family Services did not agree with the detective from the Special Victims Unit who claimed that "the child confirmed to the detective in greater detail what she had previously disclosed to her mother"….
The order removing the article doesn't explain why the judge thought she had the power to issue the order; the statute that the order cites, N.J. Stat. 9:8-1, was repealed in 1979, and it's not clear which statutory basis the judge had in mind. But in any event it's hard to imagine on what basis this article could be enjoined, especially using what seems to be a preliminary-injunction-like process, without a full trial on the merits.
Permanent injunctions following a full trial may be constitutional, if the speech fits within some First Amendment exception, such as perhaps the libel exception. Preliminary injunctions are almost never constitutional, as the Pentagon Papers case shows. And in any event, any injunction would have to be based on a showing that the entire article was indeed within a First Amendment exception—it's hard for me to see how this could be so.
In any event, it's good that the order was promptly vacated, but bad that the judge thought she had the authority to enter the order at all. Here, by the way, is the closing paragraph of the Bergen Dispatch article (by Paul Nichols) reporting on the order, before it was vacated:
While the Bergen Dispatch reviews its options we have confirmed that Bergen County does currently remain part of the State of New Jersey and that currently New Jersey is still part of the Union of states that is governed by the United States Constitution and the Bill of Rights. As such, Bergen County citizens continue to enjoy the right to freedom of speech and the right to a free press.