The Volokh Conspiracy

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Volokh Conspiracy

N.J. newspaper ordered not to publish complaint in heroin/crack-to-school child custody case


Isaac Avilucea at the Trentonian has been writing about the 5-year-old who brought heroin and crack to his school, and the resulting proceedings to take the child away from his parents:

A city boy who took heroin to school in his lunch box last month has been taken away from his family and placed in foster care after a teacher at his school told investigators she found crack cocaine inside his folder this week.

Avilucea also got, from the child's mother, the child abuse complaint (filed by the New Jersey Division of Child Protection) that sought to remove the child from her custody. That action by the mother apparently violated New Jersey law, which provides that (1) the state must generally keep any child abuse records and reports, (2) the state shall release such information to parents "only to the extent necessary for the requesting parent … to discuss services or the basis for the department's involvement or to develop, discuss, or implement a case plan for the child," but (3) the parent "shall keep the records and reports, or parts thereof, confidential and shall not disclose the records and reports or parts thereof except as authorized by law."

The state therefore got a court order that barred the newspaper from publishing "any information obtained from the filed verified complaint," as well as ordering the newspaper "to remove from any publication source any documents if already printed or distributed." And there is also a related statute, which criminalizes "encourag[ing] the release of the contents" of such records and reports (and which might presumably apply to any request by the reporter that the mother let him copy the complaint).

I think this order violates the First Amendment. Soliciting a specific illegal act may generally be made illegal (see, e.g., U.S. v. Williams (2008)); if the New York Times had actually asked Daniel Ellsberg to illegally leak the Pentagon Papers to it, it might have been punished. (The Supreme Court's Pentagon Papers decision didn't resolve whether the Times could be punished even without such a solicitation, given the national security interests involved; but any solicitation would have strengthened any such criminal case.) But it's not clear that the government may get a court order blocking publication even of an illegally solicited document—the prior restraint doctrine, which presumptively forbids injunctions against publication, is generally very strong.

And beyond that, I don't think that the government can just flatly ban the targets of government action from going to the media with complaints about such government action. If the government wants to take away your liberty, your property or your children, and you think this action is unjust, you should have the right to blow the whistle, and appeal to those who are ultimately in charge of the government, and in whose name the government acts—your fellow citizens.

Perhaps it might be permissible to narrowly restrict the release of certain highly private information (such as, for instance, any unrelated health problems on the child's part, which might have been irrelevant to the proceedings). And the government certainly has substantial authority to restrict what its own employees reveal about what they learned during their employment, as a voluntarily accepted condition of that employment. But the government can't just categorically bar private-citizen targets of government action from publicizing the important details of that action.

In any event, this is certainly an unusual court order, and I thought it important to publicize it. Here is the order (which has been extended past its original expiration date, and remains in effect).

UPDATE: I had originally included links to the briefs arguing the First Amendment issue, chiefly because I think the state's brief is a very important document: It is the government's attempt to justify a remarkable restriction on First Amendment rights, in the form of a prior restraint on a newspaper's publishing information about a matter of considerable public interest.

The Trentonian has since asked me to remove the briefs, because the briefs are apparently considered sealed as a matter of state law, and the court views them as sealed. I do not think that this strips the public of its First Amendment rights to publish the documents, but I have decided in this instance—voluntarily, and not under threat of any legal action—to remove the links and some quotes from the briefs, at least for now, chiefly out of respect for the court (even though I do not agree that the briefing should have been sealed).