2 New Jersey Journalists Face Criminal Charges for Publishing Information From a Police Blotter

The prosecution, the latest example of local attempts to criminalize news reporting, is blatantly at odds with First Amendment principles.

Last September, Red Bank Green, a news site covering Red Bank, New Jersey, published information from a local police blotter, including a description of an August 31 arrest for simple assault—an arrest that was expunged the following March. When the arrestee complained to Red Bank Green, the site added a note about the expungement but declined to remove the item, since it was still an accurate report of what had happened. As a result of that decision, Red Bank Green reporter Brian Donohue and the site's publisher, Kenny Katzgrau, face criminal charges.

"Prosecuting journalists for declining to censor themselves is alarming and blatantly unconstitutional, as is ordering the press to unpublish news reports," says Seth Stern, advocacy director at the Freedom of the Press Foundation, which first noted the case on June 27. "Any prosecutors who would even think to bring such charges either don't know the first thing about the Constitution they're sworn to uphold, or don't care. Failure to immediately correct and apologize for this inexplicable error would put prosecutors' competence in doubt and warrant investigation of whether they should keep their law licenses."

Donohue and Katzgrau are charged with violating a state law that applies to "any person who reveals to another the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged or sealed." Violators, who are classified as "disorderly person[s]," face fines up to $200.

"Publication of truthful information on matters of public significance cannot be punished unless it involves a state interest of the highest order," Bruce Rosen, an attorney representing the two journalists, wrote in a July 11 motion to dismiss the charges. "Moreover, information concerning the arrest was published prior to the expungement, and there is no requirement in law that it be removed from the publisher's website simply because an expungement [has] taken place….The issuance of probable cause in this matter is plain legal error, this prosecution is unconstitutional and in fact unfathomable, and the matter should be promptly dismissed."

As Stern notes, the charges against Donohue and Katzgrau are blatantly inconsistent with Supreme Court decisions recognizing that journalists have a First Amendment right to publish truthful, lawfully obtained information. In the 1979 case Smith v. Daily Mail Publishing Company, for example, the Court held that a West Virginia statute making it a crime to publish the names of juvenile offenders was unconstitutional.

That case involved a homicide arrest that two Charleston, West Virginia, newspapers covered based on interviews prompted by information that reporters heard on police scanners. "There is no issue before us of unlawful press access to confidential judicial proceedings," Chief Justice Warren Burger wrote for the unanimous Court. "There is no issue here of privacy or prejudicial pretrial publicity. At issue is simply the power of a state to punish the truthful publication of an alleged juvenile delinquent's name lawfully obtained by a newspaper. The asserted state interest cannot justify the statute's imposition of criminal sanctions on this type of publication."

In the 1989 case Florida Star v. B.J.F., the Supreme Court likewise held that the First Amendment precluded imposing civil liability on a newspaper for publishing a sexual assault victim's name, even though that was contrary to both state law and the newspaper's official policy. That case, like the charges against Donohue and Katzgrau, involved information that had been publicly released by a law enforcement agency.

A 2011 decision by the New Jersey Supreme Court also seems directly relevant to the charges against Donohue and Katzgrau. In G.D. v. Bernard Kenny and the Hudson County Democratic Organization, the court unanimously rejected a defamation claim based on the publication of an expunged drug conviction. "In light of common-law and constitutional principles protecting free speech," the court said, "the traditionally recognized defense of truth to a defamation action was not lost in this case because of the existence of an expungement order. The expungement statute does not transmute a once-true fact into a falsehood; it cannot banish memories."

In short, "there is no [free press] exception for expunged arrest records," Stern says, "and any state law that says otherwise violates the First Amendment. Any first-year law student should know that. Journalists don't work for the government and can't be compelled to do its bidding. In the rare instances where the government is allowed to keep records from public view, it is the government's responsibility, not the media's, to ensure that they aren't disclosed."

The prosecution of Donohue and Katzgrau is one of several recent cases in which American journalists have faced legal consequences for doing their jobs. In 2017, Priscilla Villarreal, an independent vlogger in Laredo, Texas, was arrested for asking questions about a public suicide and a fatal traffic accident. The U.S. Court of Appeals for the 5th Circuit has rejected the resulting First Amendment lawsuit twice, and Villarreal is again hoping the Supreme Court will intervene.

In 2023, police in Escambia County, Alabama, arrested a newspaper reporter and publisher for divulging nonexistent grand jury secrets—charges that were ultimately dismissed with prejudice. That same year, Stern notes, police in Marion County, Kansas, raided the office of a local newspaper "as part of an investigation premised on the absurd notion that reporters violated computer crime laws by accessing a public website to confirm a news tip." And last year, Stern adds, "the city of Los Angeles was forced to pay a settlement to journalist Ben Camacho" after it sued him for publishing photographs that the city had given him.

As Reason's Joe Lancaster reported in February, a Mississippi judge, in response to a libel lawsuit filed by the city of Clarksdale, ordered a local newspaper to remove an editorial from the internet. "The city backed down amid backlash," Lancaster noted, "but that doesn't erase its blatantly unconstitutional attempt at censorship, nor the court's agreement to go along with it."

Much the same could be said of the case against Donohue and Katzgrau. Even if the charges are ultimately dismissed, the attempt to criminalize journalism is not only chilling but perplexing in light of the relevant First Amendment precedents.