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Judge Threatens Censorship After Newspaper Reveals Bureaucratic Errors in Parkland Lead-Up

“If I have to specifically write word for word exactly what you are and are not permitted to print…then I’ll do that,” the judge said.

Taimy Alvarez/TNS/NewscomTaimy Alvarez/TNS/NewscomThe South Florida Sun Sentinel's reporting on sensitive information about Parkland school shooter Nikolas Cruz was "shameful," a circuit court judge said yesterday.

Earlier this month, the Sun Sentinel obtained a confidential Broward County School Board report on Cruz, who murdered 17 people at Marjory Stoneman Douglas High School, which he used to attend, on February 14. As Reason's Robby Soave noted, the report showed that Cruz was entitled to special needs assistance while attending Stoneman Douglas, but the school never provided him with the help he needed.

The Sun Sentinel was not supposed to have access to much of Cruz's confidential information. In compliance with a court order, the school board redacted two-thirds of the report on his background. But the newspaper figured out that by copying and pasting the report into a separate file, it could read the blacked-out portions. The Sun Sentinel then published the report in full.

In response, the school board asked Judge Elizabeth Scherer of the 17th Judicial Circuit Court in Broward County to hold the newspaper in contempt. Yesterday, in addition to saying she would consider the request, Scherer blasted the Sun Sentinel's reporting as "shameful."

"You all manipulated that document so that it could be unredacted," Scherer said. "That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It's no different."

Scherer also threatened to exercise prior restraint on the newspaper, suggesting she can control what it does and does not publish. "From now on," she said, "if I have to specifically write word for word exactly what you are and are not permitted to print—and I have to take the papers myself and redact them with a Sharpie…then I'll do that."

The Sun Sentinel says it did nothing wrong. "In a rush to deflect from its own negligence in publicly disclosing the…report at issue in a wholly unsecured format," Sun Sentinel attorney Dana McElroy wrote last week, "the School Board now seeks to have this Court find the Sun Sentinel in contempt for exercising their First Amendment rights to truthfully report on a matter of the highest public concern."

The paper says it has received the support of dozens of news organizations:

A coalition of 30 media organizations, including the Reporters Committee for Freedom of the Press, the Society of Professional Journalists, the New York Times, the Washington Post, CBS Broadcasting and CNN, came to the Sun Sentinel's side in a court brief filed Tuesday. They called on the judge to deny the School Board's motion to penalize the news organization and two of its reporters, Paula McMahon and Brittany Wallman.

According to Chuck Tobin, a lawyer for that coalition, it would be "flatly unconstitutional" for Scherer to follow through on her threat. "The order the court entered did not tell the journalists or the newspaper what they could or couldn't publish," Tobin said.

The Broward County School Board, meanwhile, has backtracked somewhat, telling the court yesterday it didn't actually want the Sun Sentinel to be held in contempt.

Photo Credit: Taimy Alvarez/TNS/Newscom

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  • Sevo||

    ""If I have to specifically write word for word exactly what you are and are not permitted to print…then I'll do that," the judge said."

    Please do, judge. It will make impeachment much easier.

  • Kyfho Myoba||

    Impeachment via Rule .308

  • Pro Libertate||

    Making the threat is unlawful all by itself. What is it about people trying to gut the First Amendment?

  • Libertymike||

    To the extent that the judge is concerned about Cruz' ability to get a fair trial, this is not as black and white as everybody is making it out to be.

    My boy Pro-Lib, my brother counsel, is there not some tension between the FA and the 6th in these matters?

  • JesseAz||

    We aren't England. We don't violate the first in worry jurists may prejudge an outcome. There are means available to rectify that with jury selection procedures or changing venues.

  • Rossami||

    re: "is there not some tension between the FA and the 6th in these matters?"

    No, there is not. If the government is unable to deliver a fair trial to Cruz, then it must let him go free. But that will be entirely unnecessary since there are many ways that the courts can ensure a fair trial to Cruz regardless of this information disclosure. The fact that the judge is too lazy to consider them is no excuse at all for weakening the First Amendment.

  • Brett Bellmore||

    More importantly, we need to kill this idea that an ignorant jury is key to a fair trial. No, it's important to the government's effort to render juries as powerless as possible by making sure the are the proverbial mushrooms: Kept in the dark and fed BS!

  • BYODB||


    To the extent that the judge is concerned about Cruz' ability to get a fair trial, this is not as black and white as everybody is making it out to be.

    I absolutely get where you're coming from with this, but honestly do we think there is somewhere that won't know about this story going into it?

    Not that I disagree with the notion (and law) when it comes to that, but it seems that the school system truly screwed up by not actually redacting the document. Which really isn't that surprising since, as a rule, public schools are run by drooling CYA morons.

    If there's going to be a judgment against somebody, it seems like it should be the school system for incompetence since prior restraint seems like it's far worse.

  • MasterThief||

    That's about my take. I don't know or necessarily care to know specifically what redacted information was printed. Some things I might consider to be in poor taste and others might rise to the level of journalistic malpractice. The school gave them a document and they managed to extract more information than the school intended to give. Part of me is pleased that the unedited document was available so that less media manipulation around it was possible. The other part questions whether it is prudent to release certain personal/private information to the public. While I thought that a newspaper releasing public information about CC permit holders in NY was legally permissible it also came off as militant and stupid. They have large platforms and should be at least moderately careful regarding what information they choose to make public.

  • LarryA||

    To the extent that the judge is concerned about Cruz' ability to get a fair trial, this is not as black and white as everybody is making it out to be.

    Seems to me the door swings the other way. If everyone knew the school district failed to provide necessary intervention, wouldn't that be more likely to sway the jury toward the boy? "Special-needs student not guilty because of monumental educational malfeasance?" I'd think the defense attorney would have those paragraphs printed on posters and scattered about the courthouse.

    Broward ISD didn't redact to protect the student; it's in CYA mode.

  • Pro Libertate||

    Yes, of course, that can come into play (two rights go in, one right comes out), but I don't think that's the case here.

  • mnarayan||

    Plus I'm not sure how a right can "bust a deal".

  • Dillinger||

    >>>and you found some type of a light that could view redacted portions and had printed that. It's no different."

    right. still on the Broward School Board for giving out the information.

  • Red Rocks White Privilege||

    Left unsaid is the issue surrounding HIPAA laws and whether the school board violated those by giving them to the newspaper. If the board is simply going to release an individual's file, even in redacted form, the press is going to assume that it's okay to report on everything that's in the file.

    If the board had simply given the newspaper the unredacted portions, this wouldn't even be an issue.

  • TuIpa||

    FERPA is ghe guiding law here, HIPAA does not generally apply to schools, even woth regards to medical information.

    from hhs.gov

    "Does the HIPAA Privacy Rule apply to an elementary or secondary school?
    Generally, no. In most cases, the HIPAA Privacy Rule does not apply to an elementary or secondary school because the school either: (1) is not a HIPAA covered entity or (2) is a HIPAA covered entity but maintains health information only on students in records that are by definition "education records" under FERPA and, therefore, is not subject to the HIPAA Privacy Rule. "

  • Red Rocks White Privilege||

    That clarifies things.

  • MichaelL||

    I wonder if the government voids those rules, as they do the HIPPA rules, when they are of, possible, benefit to the government. Medical boards can come in and take all of the patients' medical records, if they so choose. It is just another one of those "it applies to us, but not them (violators of the laws)" situations! It is no longer the opinion of "we the people"?

  • Kristian H.||

    "From now on if I have to specifically write word for word exactly what you are and are not permitted to print—and I have to take the papers myself and redact them with a Sharpie…then I'll do that."

    1) That doesn't work well on digital files
    2) That doesn't work well on paper (redacting ink is different than sharpies, it saturates much better and has a texture the hides the printed letter much better.

    Now, if we are talk about sharpies, followed by scanning, then feeding to a pig, and giving the pig shit to the press, that will work. Basically, just follow the police transparency policies.

  • Cynical Asshole||

    "From now on if I have to specifically write word for word exactly what you are and are not permitted to print—and I have to take the papers myself and redact them with a Sharpie…then I'll do that."

    1) That doesn't work well on digital files

    I just got a mental image of the judge using a Sharpie on her computer screen. Heh.

  • Longtobefree||

    How can you tell it was a blonde using a computer?
    White out on the screen.

    A decade ago that was a joke; now it is probably assault. At least this is not a college campus.

  • Careless||

    You're older than you think you are.

  • Flinch||

    I've long suspected educators [as a group] are a dim bulb. Individual teachers are a different story obviously, and do much better. But if these redactions were ordered by the court, did they not review them as a matter of oversight? The school board had already indicated their incompetence trying to "mainstream" this Cruz kid while simultaneously assisting the local sheriff in breaking the system for doing gun checks, and this judge is purposely barking up the wrong tree in my estimation - is this an engineered mistrial? If not, then Broward county government needs to be flushed top to bottom.

  • mpercy||

    Educators, as a whole, tend to have among the lowest SAT/ACT scores entering undergraduate and lowest GRE scores entering grad school.

    Education majors do seem to score slightly better than Public Administration and Social Services majors.

  • Jerryskids||

    How old is this judge that she's never heard of the Pentagon Papers?

  • Scarecrow Repair & Chippering||

    Or the First Amendment?

  • Longtobefree||

    OK, I am just a little slow.
    I went to college when it taught facts and job skills and all that stuff.
    What part of the first amendment gives someone the right to violate a court order?

  • Scarecrow Repair & Chippering||

    Eh? Freedom of the Press, you've heard of it? She obviously never has.

  • Kyfho Myoba||

    All inferior courts (courts other than the Supreme Court) are created by acts of the legislature. 1st amendment prohibits said legislature from abridging freedom of speech/press. Legislature may not get around this by creating a court that does the abridging for it.

  • Hooha||

    No part of it does that.

    The first amendment does, however, enshrine your innate right to violate a court order that infringes on your freedom of speech.

  • ThomasD||

    Actually you violate nothing, because any order that attempts such an infringement is void.

  • MatthewSlyfield||

    You can't violate a court order to which which you were not subject in the first place.

    Per the article, the court order that the newspaper was found in contempt of violating was an order that the school district was to redact certain information. The news paper was never subject to that court order in the first place, or to any other court order protecting the relevant information, so the contempt finding is problematic on far more grounds than just the first amendment.

  • JesseAz||

    What... Did you miss all the DNC email talk with actual national reporters telling viewers that only the press could review the files?

  • DajjaI||

    social skills instruction and behavior support daily

    This was his pre-K recommendation. This type of 'treatment' really messes up a kid. It's amazing only that more kids don't end up like this.

  • JesseAz||

    When terrorists attempt early processing of children it is indoctrination. When government does it it is intervention..

  • Get To Da Chippah||

    I would have no problems admitting in open court that I harbor nothing but contempt for contemptible behavior, said behavior in this case meaning the actions of the judge.

  • Scarecrow Repair & Chippering||

    I could never be a lawyer. I would have told the judge to learn to read the First Amendment, that she needs some continuing education in constitutional law, and double dog dare her to lay down some prior restraint and dickat on what to print.

  • Libertymike||

    You don't think its hard for a fanatical anarchist, like me, to be a lawyer?

    At any rate, this could be a case where there is some tension between the FA and the 6th.

  • JesseAz||

    Not really. You'd have to presuppose 100% of potential jurors read the sun sentinel or even care.

  • Juice||

    They found a jury for OJ.

  • JesseAz||

    Who?

  • Agammamon||

    "That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It's no different."

    *confused look*

    No, no it isn't Your Honor. You're right, its exactly the same. And that would be legal too.

    Its like the NJ politician (or was it Pennsylvania) saying that publishing the plans for a 3d printed firearm was like coming in the state with a book printed with those plans. They say these things and you go 'but . . . you don't know that that is already legal?'

  • Unicorn Abattoir||

    NJ Attorney General.

  • chemjeff radical individualist||

    Wait wait. People in positions of power will abuse that power from time to time? No way! I was told this doesn't happen.

  • Rossami||

    The judge is right that this is no different from holding a blacked-out page up to a light. And it's entirely legal. Scherer is just wrong. This is a blatant First Amendment violation. The reporting may be "shameful" but the judge's reaction is worse.

  • Dizzle||

    While i agree, this raises an interesting question... Given the ridiculous amount of scanning, editing, and analyzing software and hardware out there. How does someone properly redact a document in this age? Honestly, I'm in the design field and its interesting to contemplate, especially considering the differences if the document is digital, hard copy, or both.

  • Longtobefree||

    Step one: do not provide an electronic copy.
    Step two: print it out single sided, and use scissors.

  • Absaroka||

    Adobe's advice on PDF redaction.

    The NSA's two cents.

    There are also commercial redaction packages, advice from US Courts, etc, but I've used up my two links :-)

  • See.More||

    How does someone properly redact a document in this age?

    Highlight the portion to be redacted. Type (replacing the text) "[REDACTED]". Save-as .Redacted.

  • Absaroka||

    If you do that, better be sure whatever software you're using doesn't include a change log inside the document.

    There are a surprising number of ways to mess up redaction. If it's important, do it right.

  • Dizzle||

    That's kind of my point. And how many school administrators will understand any of this? Let alone any other average person, especially if they're older. I get it, the school screwed up. But they probably didn't even understand what they were should have done. Kinda like that whole you can't be convicted of a crime if you didn't know it was a crime defense.

  • Rossami||

    Whether or not the school administrators knew how to redact, you can be darned sure that their lawyers do. This is really basic stuff for anyone with even a little bit of training in electronic discovery and production.

    So the options are:
    1. The lawyers released the material without redacting it properly - in which case they are incompetent and the school board will be able to sue them for malpractice.
    2. The lawyers deliberately released the material poorly redacted in order to taint the trial - in which case they could be brought up on ethics charges
    3 (and most likely). The administrators released the material without talking with their lawyers - in which case they're idiots who deserve everything they get.

  • Naaman Brown||

    You do a black and white scan of the printed document with black ink redaction and create a PDF from the scanned monochrome images.

    You do NOT take a text document PDF, draw a square over the "redacted" text, and fill with color as a layer over the text. (There are PDF edit methods that do remove the text in the redacted area.)

    It was easy to get the redacted text in the posted PDF of the police report on Michael Apperson who shot at George Zimmermen.

    I found not it possible to get the redacted text in the posted PDF of the DoJ OIG Report on Operation Fast and Furious.

  • Brett Bellmore||

    Print it out. Go over the print out with a black marker, or better, a paint pen. Scan with contrast set high. Print the scan in black and white, no grey scale.

    White out before scanning works well, too.

  • majil||

    This Judge is on LSD. I thought this was settled law already . The Board gave this to the Journalists and they can do with it what they want . The Paper is responsible to save the incompetent school board from themselves.

  • Kyfho Myoba||

    **not** responsible

  • Hank Phillips||

    Another illiterate prohibitionist diagnosis. Dosing the judge would likely be a wake-up call for decisions far less stupid.

  • Unicorn Abattoir||

    "You all manipulated that document so that it could be unredacted," Scherer said. "That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It's no different."

    She's right, it's no different. And completely legal.

  • Truthteller1||

    The media really is the enemy of the people. Few professionals so ns are held in lower regard.

  • Unicorn Abattoir||

    What about judges?

  • Earth Skeptic||

    Enemies of intelligence? Common sense? Reason?

  • Ken Shultz||

    This is outrageous!

  • Rob Misek||

    Society needs to hear and discuss ALL the issues, factors, environmental and mental conditions that affected the shooter before the murder.

    These mass murderers aren't going away.

    But where is this information? Censored for our own good? I don't think so.

    We can't make informed decisions without information.

    If everyone was aware of the commonalities we could act proactively. Who does this information threaten?

    It makes me wonder if sometimes the issues tormenting them would compromise the "assumed integrity" of powerful people. At least make others think about it.

  • ||

    Crazy shit.

    Woodchipper worthy!

  • Curly4||

    There has been very little said about what the school did or should I say Did not do? Now I don't know why the school failed to do what was required of them to report and refer Cruz to mental health officials or the police not to report the several run-ins that Cruz has had with them. But if these had been reported as they should then Cruz would not have been able to buy the weapons that he used. Now I have read that it was a program that the Feds had started to prevent young people from getting a police record and this is the reason Cruz was not in the system. Also the police department and school district would benefit money if there were fewer reports.
    But in all the hullabaloo than was on the internet and in the news there was nothing about this. Nor was there anything the students said that condemned the school nor the the police for their failures. Just more gun control is all they talked about when the laws that would have prevented this from happening were prevented form doing its job because of human failure.

  • D-Pizzle||

    "Now I have read that it was a program that the Feds had started to prevent young people from getting a police record and this is the reason Cruz was not in the system. "

    Broward County actually had this policy in place before the fed policy. The feds merely adopted this stupid, stupid policy.

  • Flinch||

    That school board is still stuck on stupid as much as the time leading to the shooting [asking the judge to effectively assist them to unflash the public with a monstrous deflection away from their gross incompetence]. When you want something issued in redacted form it's simple: use that black marker, then copy or scan from that revised document for something that is usable for dissemination. The only cure here is a change of venue, and given the courts mendacity I doubt it will be granted by simple motion - somebody has to sue for it.
    I used to dislike Dade county above all others in Florida because if you were going to be a victim of crime there, the odds of it being violent seemed higher than most other places. Broward just beat them out of that, and maybe... this judge is doing a fan dance knowing full well the redactions were defective [and wanted them that way]. It seems everywhere this Cruz kid has gone in that county, they have gone out of their way in all public offices to do the most damage to the most people possible in every conceivable circumstance. What a shithole.

  • FlameCCT||

    Judge Elizabeth Scherer of the 17th Judicial Circuit Court in Broward County publicly displayed her ignorance for all to see. Not to mention publicly displaying the ignorance of the school board that did not redact the document properly.

  • mpercy||

    "You all manipulated that document so that it could be unredacted," Scherer said. "That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It's no different."

    And your point is what again?

    If you give paper or files to someone that you don't want to be able to read the redacted parts, then it's on you to properly redact them.

  • Karl Hungus||

    Give some arrogant crone a black nightgown, a seafood mallet, and a little taste of power, hijinks will ensue.

  • buybuydandavis||

    Shorter: Government gets mad when it is too incompetent to properly redact information in a non-recoverable form.

    "How dare you take off the post-it note I covered the Bad Information with!?"

  • Hank Phillips||

    THAT POOOOR BAYBEE! So all those people were actually victims of the perp's unmet neeeeds. How tragic that this monster is what the latest teratogenic mutation of the LP platform condemns citizens to support through taxes--or join the bastard in prison... Who are these platform amenders?

  • vek||

    They're just mad because the media actually did their jobs instead of tow the party line and defend government incompetence... The horror!

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