The Volokh Conspiracy

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Connecticut judge lifts his gag order against newspaper


As I blogged two weeks ago (quoting Thomas B. Scheffey (Connecticut Law Tribune / Journal Inquirer)), a Connecticut judge "enjoined the Connecticut Law Tribune from publishing an article based on a court document that had previously been published on the Judicial Department website." This, I argued, was likely unconstitutional, citing the precedents and the petition in this case:

Seems very likely to be a First Amendment violation. Even if the information shouldn't have been published in the first place, once it's released to the public even after-the-fact civil liability can't be imposed, see, e.g., Florida Star v. B.J.F. (1989); an injunction is even less likely to be constitutionally permissible, see, e.g., the Pentagon Papers case (1971).

The case seems to be Foy v. Katz, in which father Eric Foy claims that his three children were unjustifiably placed in foster care; I know nothing more about the rights or wrongs of that particular claim. Thanks to John Griffin and Roger Schlafly for the pointer.

The ABA Journal reports that the judge has now lifted the order, after the Connecticut Supreme Court had agreed to hear arguments on whether the order should be lifted:

A Connecticut judge has lifted his own order barring the Connecticut Law Tribune from publishing a story about a child custody case after a hearing in which he noted that other publications had already posted a sealed document…. During the hearing, [the judge] had expressed frustration that a sealed document that was the focus of the Law Tribune article was on other websites, including a website associated with the Washington Post.

Frazzini appeared to be referencing this post by the Volokh Conspiracy, which linked to a habeas petition by a father who contested the custody of his children by the Department of Children and Families.

The document was public when it was filed, but it was later sealed and the case transferred to juvenile court, where judges have discretion under a state law to bar the news media from disclosing information that would identify a child….